or limited Power of Attorney
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
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:
you wish to appoint more than one attorney, and will they
have to act together or have separate powers
the Power of Attorney to be limited in a particular way or
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.
Power of Attorney
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.
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.
are in place for any abuse of this power to be investigated by
the Guardianship Tribunal.
of enduring guardian
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.
is the difference between an Enduring Power of Attorney and an
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.
happens with medical and dental 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.
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.
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.
happens if my alternate choice dies, resigns or he or she becomes
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.
an Enduring Guardianship different to an Advance Care Directive?
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.
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:
associated with appointing an Enduring Guardianship
who cannot be appointed under Enduring Guardianship laws
of documents for appointment of Enduring Guardianship
of power under an existing Enduring Guardianship
Wills / Advance Care Directives
New South Wales the document generally thought of as a Living Will
is also known as an Advance Care Directive.
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
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
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.
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.
in The Guardianship Tribunal
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.
legally binding appointments of guardians and financial managers
as substitute decision-makers
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.
a substitute guardian if the person appointed originally has
since died or become seriously ill
the validity of the appointment if it is hampered by some
technical legal problem
an attorney appointed under an Enduring Power of Attorney
and appoint a financial manager
the powers of the attorney and require the attorney to provide
accounts and have these audited
a declaration that a person did not have the capacity in the
first place to make an Enduring Power of Attorney
all proceedings in the Guardianship Tribunal the underlying
consideration will be 'what is in the best interest of the
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.
Mental Health Tribunal
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.
can be made
Some of the
orders that the Tribunal may make include:
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
Treatment Patient orders also require people to remain in
Community Treatment or Counseling orders allow people to live
in the community – time frame up to 6 months with renewal
medical treatment involving involuntary patients
estates Order to manage a patient’s financial affairs
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.
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.