Enduring Powers Of Attorney and Enduring Guardians

It can be confronting to have to think about a situation where you may lose your mental capacity. The possibility of an illness or sudden accident which can leave you unconscious or unable to think or speak properly. Such scenarios should not be considered only by the elderly and the infirm. Just like preparing your Will, it is important to be prepared should the worse eventuate.

When you appoint a person to be your Enduring Power of Attorney or your Guardian, you are giving that person the power to make important decisions on your behalf in the event that you lose mental capacity and can no longer make those decisions for yourself.

Enduring Powers of Attorney and Enduring Guardians are created to ensure you have peace of mind, ensuring that someone you know and trust is making the decisions for you and in your best interests.

Frequently Asked Questions

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

An Enduring Power of Attorney gives another person the authority to manage legal and financial matters on your behalf. Depending on your wishes, this can include buying and selling property, operating bank accounts, and spending money on your behalf.

An Enduring Guardian gives another person the authority to make lifestyle and medical decisions on your behalf. These decisions may include deciding where you live, which doctors you see, the type of care you receive or any medical treatment you may need to receive. They will also have access to your medical information in order for them to make the best decisions regarding medical care.

Who can be appointed as a Power of Attorney or Guardian?

Anyone aged 18 or over can be appointed as your Power of Attorney and or Guardian. Preferably, it will be a spouse, child, near relative or some other trusted individual in your life. Often, Galluzzo Lawyers will draft mutual powers of attorney, where a married couple each appoint the other to be their power of attorney, should the worst ever happen to one of them.

Can more than one person be appointed as my Power of Attorney or Guardian?

Yes, Joint Powers of Attorney and Joint Guardianships are also possible.

Can I wait until something happens and then grant Power of Attorney and/or Guardianship

No. If you have lost your mental capacity, whether that be through degenerative brain disease such as dementia, or by a sudden illness or accident, under the law you are no longer considered capable of appointing a Power of Attorney or Guardian because you no longer have the mental capacity and the ability to fully understand such decisions. It will be too late.

What will happen if I lose mental capacity, and I have not appointed anyone to be my Enduring Power of Attorney or Guardian?

Without any legal appointment, nobody automatically has a right to manage your assets or make decisions on your behalf. Not even your husband or wife.

Your loved one would have to apply to a Tribunal in order to be appointed your financial manager or Guardian. If the Tribunal believes that person to be not fit for the task, then it may appoint a governmental body, the NSW Trustee and Guardian, to manage your affairs.

This can be a long and stressful process, especially at a time when your loss of capacity would likely be causing stress and difficulty in itself.  Galluzzo Lawyers strongly recommends you sort your affairs out in advance.

Can I change my Power of Attorney or Guardian once I have appointed one?

Yes. So long as you are still mentally capable, you can alter the appointment.

How can I avoid my Power of Attorney and/ or Guardian abusing their position and taking advantage of the power they have over my finances and life decisions?

The documents which appoint Powers of Attorney and Guardianships can be drafted in such a way that place restrictions on how a person can deal with your finances, and how they can make decisions on your behalf. Galluzzo Lawyers can draft particular limitations into the document, and you can decide:

  • what your Power of Attorney or Guardian is and is not allowed to do
  • Limit any benefits they can receive from the position
  • Require that a doctor provide a medical certificate or certain recommendations before any medical treatment decision is made on your behalf and much more

Galluzzo Lawyers can tailor a document to suit any specific requirements you feel need to be put in place to ensure peace of mind.

CASE STUDIESSearch Case Studies

Suite 8, 26 Castlereagh Street, LIVERPOOL NSW 2170

Galluzzo Law Practice Pty. Ltd.
ABN 18 002 006 993
Migration Agent No. 1570170
Galluzzo Law Practice Pty. Ltd. trading as Galluzzo Lawyers is a Solicitor Corporation under the Legal Profession Act 2004.

Liability limited by a scheme approved under Professional Standards Legislation.

Copyright © Galluzzo Lawyers 2021

This site is protected by Google’s reCAPTCHA v3 software