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SeniorLaw Services - Power of Attorney and Guardianship
General or limited Power of Attorney

A Power of Attorney is a legal document which gives another person legal power to deal with your financial affairs. There are two types of Power of Attorney; one is ordinary and ceases to operate if you lose mental capacity, the other is enduring and continues to operate even in the event of your incapacity. Because of the legal power these documents can transfer to another person you must always take time to be carefully advised on their operation. If you believe someone is abusing their power as an attorney, legal remedies are available and you should consult us without delay.

When you create an active Power of Attorney you can choose to direct your attorney to act immediately for you in accordance with your instructions. Otherwise it can remain dormant and activated only if required. It may have been created for a specific purpose such as enabling your attorney to sign a contract while you are overseas for a short period of time.

A Power of Attorney enables your appointed attorney to have the power to take care of your legal and financial matters only.

You will need to carefully consider:

Who to appoint
If you wish to appoint more than one attorney, and will they have to act together or have separate powers
Is the Power of Attorney to be limited in a particular way or general

If you were involved in a serious car accident or had a stroke for example your mental capacity may be lost and your financial affairs frozen. In cases of incapacity application could be made to the Guardianship Tribunal for the appointment of a financial manager. However this involves costs and extra time which could have been avoided. How? Quite simply by putting in place an Enduring Power of Attorney while you were fit and well and had the necessary mental capacity.

Enduring Power of Attorney

The vital difference between these two powers is the enduring power does not cease to operate if you become mentally incompetent. Once an assessment is made that a person is legally incapable the attorney who has an enduring g power is still able to attend to his duties and manage your legal and financial affairs.

An enduring power of attorney or an ordinary power of attorney cannot be used to appoint and authorise someone to make medical, personal or lifestyle decisions on your behalf. Financial decisions made under an enduring power of attorney may also link to the person’s lifestyle issues and for this reason it is important both your attorney and guardian are able to work together if different people hold these roles.

Safeguards are in place for any abuse of this power to be investigated by the Guardianship Tribunal.

Appointment of enduring guardian

What is the difference between an Enduring Power of Attorney and an Enduring Guardian?
What happens with medical and dental treatment?
Can an Enduring Guardian make a Will for me if I don’t get around to doing that?
Can I appoint more than one enduring guardian?
What happens if my alternate choice dies, resigns or he or she becomes incapacitated?
Is an Enduring Guardianship different to an Advance Care Directive?
What happens if I get married?

Anyone over 18 can appoint an enduring guardian provided they have legal capacity.
This appointment allows your enduring guardian to make personal and lifestyle decisions legally on your behalf should you lose the necessary capacity. Because the appointment operates when you are no longer competent there are strict requirements for signing and witnessing such a document. The category of people who may be appointed as enduring guardians also has exclusions.

What is the difference between an Enduring Power of Attorney and an Enduring Guardian?

Your Enduring Attorney handles your financial and legal affairs and your Enduring Guardian looks after your personal and lifestyle decisions should you become incapacitated. You can choose the same person or people to fulfil both roles or appoint different people. Always check to confirm the people you would like to appoint are happy to take on these responsible roles.

What happens with medical and dental treatment?

Such treatment must promote or maintain your health and wellbeing. Where you object to particular treatment it is not possible for your guardian to override this. Special treatment is also out of the control of an enduring guardian and will involve the Guardianship Tribunal.

Can an Enduring Guardian make a Will for me if I don’t get around to doing that?

No, it is not within the power of an enduring guardian to make a Will for you or alter your existing Will either.

Can I appoint more than one enduring guardian?

Yes, you can appoint more than one person and there are a number of ways depending on what powers you want each of them to have, and whether they are allowed to make joint or independent decisions. You may also wish to consider appointing an alternate enduring guardian.

What happens if my alternate choice dies, resigns or he or she becomes incapacitated?

There will be no one left in the role. But if it is recognised that you need a guardian, anyone, not just relatives, who has a genuine concern for your welfare, can make application to the Guardianship Tribunal to consider another appointment.

Is an Enduring Guardianship different to an Advance Care Directive?

Yes, when you appoint an Enduring Guardian you are making a legal appointment for a substitute person who will make personal and lifestyle decisions for you. There is no statute law in NSW in regard to Advance Care Directives. This document sets out your wishes about future medical treatment you would like, or not like, to receive.

What happens if I get married?

Like a Will, if you make the appointment of an Enduring Guardian and then marry after that date it will automatically revoke the appointment. (Marriage will not revoke the appointment if you marry the person you appointed as your Enduring Guardian).

We are able to assist you with your enquiries concerning the appointment of Enduring Guardians. This may relate to:

Issues associated with appointing an Enduring Guardianship
People who cannot be appointed under Enduring Guardianship laws
Preparation of documents for appointment of Enduring Guardianship
Abuse of power under an existing Enduring Guardianship

Living Wills / Advance Care Directives

In New South Wales the document generally thought of as a Living Will is also known as an Advance Care Directive.

There has been a great deal of discussion about living Wills in recent times following the deaths of U.S. Florida woman Terri Schiavo and West Australian Michael Spanbroek. A Living Will was not made in either case. Michael Spanbroek was 29 when he died from juvenile Huntingdon’s disease in March 2005. His Perth family fought for their terminally ill son to be allowed to die in peace. The case has prompted a review of current legislation by the West Australian Government. Terri Schiavo, who had been diagnosed as being in a vegetative state after suffering brain damage years ago, died after a feeding tube was removed. Both her husband and parents had engaged in a bitter battle in the media and the courts.

There is no statute law in New South Wales governing Advance Care Directives. Recognition is only by way of common law. There are no proposals at present to legislate in this area.

It is important to remember that Advance Care Directives

enable a person to give directions in advance of any incapacity in regard to future medical care - in other words it does not operate while a person remains competent to make his or her own decisions.
can direct medical care that includes not only particular treatment a person may not want to receive but also treatment a person may want to receive.

At SeniorLaw Sydney we can take your instructions and prepare an Advance Care Directive to meet your wishes. It is vital to keep an Advance Care Directive up to date by reviewing its terms regularly in conjunction with your Will and any appointment of enduring Attorney and Guardian. Your enduring Guardian should be made aware of the terms of any Advance Care Directive.

Proceedings in The Guardianship Tribunal

The Guardianship Tribunal is an independent legal tribunal and it strives to safeguard the rights of people with disabilities.The Guardianship Tribunal is not the same as the Office of the Public Guardian or the Office of the Protective Commissioner.

The Tribunal can:

make legally binding appointments of guardians and financial managers as substitute decision-makers
make a determination to decide if an Enduring Guardianship is operative - this may be required when there is some issue unresolved between family members for instance attempting to decide if a parent has capacity or the enduring guardian who was appointed should take over.

The Tribunal may be required to determine the issue.

appoint a substitute guardian if the person appointed originally has since died or become seriously ill
confirm the validity of the appointment if it is hampered by some technical legal problem
remove an attorney appointed under an Enduring Power of Attorney and appoint a financial manager
vary the powers of the attorney and require the attorney to provide accounts and have these audited
make a declaration that a person did not have the capacity in the first place to make an Enduring Power of Attorney
For all proceedings in the Guardianship Tribunal the underlying consideration will be 'what is in the best interest of the person'.

If you have any questions concerning proceedings in the Guardianship Tribunal please telephone and come in to discuss your concerns with us. We look forward to being of assistance to you.

The Mental Health Tribunal

Role in brief

The Mental Health Review Tribunal is an independent body established under the terms of the NSW Mental Health Act 1990. Its purpose is not to prescribe treatment but to review case management proposals. The Tribunal is responsible for ensuring civil and legal rights of people with mental illness are upheld.

Orders can be made

Some of the orders that the Tribunal may make include:

Temporary patient orders made when a person is involuntarily admitted to hospital because of mental illness – this will require a person to remain in hospital for up to 3 months and may be extended
Continued Treatment Patient orders also require people to remain in hospital
Community Treatment or Counseling orders allow people to live in the community – time frame up to 6 months with renewal possible
Special medical treatment involving involuntary patients
Protected estates Order to manage a patient’s financial affairs

More Information about a PEO (Protected Estate Order)

If a person with a disability like mental illness is unable to manage his or her own financial matters, the Protected Estates Act 1983 allows a Protected Estate Order to be made.

If a person is an inpatient in a psychiatric hospital the Tribunal can make such an order. This will enable the Protective Commissioner to manage the person’s property, business and financial dealings.

Friends or relatives can be involved in the day to day management as well however the Tribunal is not in a position to appoint them as the actual manager of a patient’s estate. Certain circumstances will have to apply before the Protected Estate Order would be revoked even after the patient has left hospital.

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SeniorLaw Sydney (ABN: 33 560 807 269)
Level 5, Castlereagh Chambers
64 Castlereagh Street
Sydney NSW 2000

Tel. (02) 9235 3160
Fax. (02) 9235 2733

© 2006 SeniorLaw Sydney