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You may have a Will, but do you need a Power of Attorney, Enduring Guardianship or Advanced Care Directive in place?

You may know what a Will is, and you may already have one in place. But do you know what the purpose of a Power of Attorney, Enduring Guardianship and/or Advance Care Directive is?

Below we explain to you the purpose of each of these documents. You can then consider whether you may need to see a lawyer to put one or more of these documents in place.

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Power of Attorney

A power of attorney as just as important as your will. A power of attorney is a legal document wherein you appoint a person or persons who will manage your assets and financial affairs if you become unable to do so. This may be due to your absence (you may be overseas), or an illness, injury or disability.

It is important that you trust the person/s with whom you have appointed in your power of attorney. If you appoint more than one attorney, you should feel confident that your attorneys will work together and cooperate with each other to make decisions that are in your best interests. If the power of attorney document becomes operational, your power of attorney may be able to make financial decisions and sign legal documents on your behalf. If you have a power of attorney in place it is important to keep this document up to date and consult a lawyer if you feel you need to change your power of attorney.

Your power of attorney document can appoint whatever powers you would like your attorney to have. It is important that you seek the advice of a lawyer to decide what will best suit your individual circumstances if something were to happen to you or if you are going to be absent/overseas for a period of time. Your power of attorney can be revoked at any time provided you have the capacity to do so.

If you do not have anyone who you think you can appoint as your attorney, you can appoint the Public Trustee at the NSW Trustee & Guardian as your attorney. 

You can find out more information about a power of attorney at the NSW Trustee & Guardian website. You can download a guide for powers of attorney at this link.

Enduring Guardianship

An enduring guardianship document appoints a guardian to make decisions in relation to your lifestyle, health and medical care. This differs from a power of attorney which appoints an attorney or attorneys to manage your assets and financial affairs.

The person or persons whom you choose to appoint as your attorney and guardian can be the same.  If you appoint more than one guardian, you should feel confident that your guardians will work together and cooperate with each other to make decisions that are in your best interests.

Your guardian/s can make decisions about where you live, what medical treatment and/or care you will receive. Your enduring guardianship document is only active during the time in which you do not have the capacity to make these decisions for yourself.

You can find our more information about an enduring guardianship at the NSW Trustee & Guardian website. 

"If you lose capacity and have not appointed an enduring guardian to make important health and lifestyle decisions, an application will need to be made at the Guardianship Division, NSW Civil & Administrative Tribunal to have a guardian appointed for you" - NSW Trustee & Guardian. If no-one is suitable to be appointed as your Guardian, the tribunal will appoint the Public Guardian to be your guardian. 

Advanced Care Directive / Advanced Directive

An advanced care directive (or advanced directive) is a document which provides clear directions as to your wishes and values in relation to any medical care or end of life decisions that may need to be made.

An advanced care directive can be attached to your enduring guardianship document. These directions should be known to your appointed guardian/s.

An advanced care directive is usually kept as a separate document from your guardianship document to avoid the need to modify your guardianship document in the event that you wish to make changes to your advanced care directive.

A booklet on making an advanced care directive can be found on the NSW Health website.

Your advance care directive may include information such as:

  • religious values;
  • dying wishes;
  • binding refusals of health care, i.e., do not resuscitate;
  • organ donation; 
  • how far your treatment should go when your condition is considered terminal; and
  • outcomes of care you wish to avoid.

An example of an advanced care directive document can be found at the SA Government's Advance Care Directives website.

Keep in mind, an advanced care directive is not a will, and its contents should only relate to your medical care and end of life directions.

If you have considered the above information, have any questions or would like to put in place one or more of the above documents, contact Ardent Lawyers on (02) 4444 6808 or contact@ardentlawyers.com.au to make an appointment at a time and place convenient to you.