Do I need an enduring power of attorney and enduring guardianship in NSW when I already have a will?
A common misconception is that a Will is sufficient for all matters of financial and personal care. However, this is not the case. A Will does not have the legal authority to dictate what should happen if an individual is still alive but lacks the mental capacity to make decisions for themselves.
What is the difference between a Will, Power of Attorney, and Enduring Guardian?
The main difference between a Will, Power of Attorney, and Enduring Guardianship is when the documents take effect. A Will sets out your wishes for what would happen to your Estate when you pass away, and so, takes effect after your death. An Enduring Power of Attorney allows an appointed individual, known as an attorney, to manage your financial affairs if you are unable to do so yourself, while an Enduring Guardianship appoints a guardian to be responsible for making lifestyle and medical decisions on your behalf.
What happens when no Enduring Power of Attorney and Enduring Guardianship has been made?
In cases where an individual loses mental capacity due to an accident, permanent disability, or temporary illness, not having prior arrangements can lead to significant legal challenges. Even if you have not lost mental capacity, you may need someone to access your bank account or conduct a transaction on your behalf. Take for example, a scenario where a son or daughter intends to assist an elderly parent with their finances; they may face hurdles with banks that demand proof of legal authority. Preparing for such situations in advance can prevent these complications and ensure that your affairs are handled smoothly and without legal barriers.
Unfortunately, it is too late to create an Enduring Power of Attorney and Enduring Guardianship once someone loses decision-making capacity.
If a person no longer has capacity to appoint an attorney, a family member or friend can make an application to the NSW Civil and Administrative Tribunal (NCAT) for a Financial Management Order.
If an individual loses the capacity to make medical and dental decisions for themselves and has not previously appointed a guardian, a spouse or partner, unpaid carer, family or friend may be able to provide or withhold consent when it comes to medical or dental treatment.
Should decisions need to be made about accommodation and services the individual receives, or there is no person who has the legal authority to be responsible, anyone can make an application to the Guardianship Division of NCAT to have a guardian appointed.
Loss of mental capacity is not exclusive to the elderly and infirm; it can impact anyone. It's wise to prepare for the unexpected, even when you're in good mental health.
Creating a Power of Attorney and an Enduring Guardianship is a step towards peace of mind, knowing that both your financial and personal care decisions will be in trusted hands, even if you are not able to make them yourself.
Contact us today to speak with one of our Wills & Estate Lawyers about preparing a Power of Attorney and Enduring Guardianship.
