FAQs

An Enduring Guardian is someone you appoint to make lifestyle and health decisions on your behalf, when you don’t have the capacity to make them for yourself. An Enduring Guardian cannot make financial decisions. A Power of Attorney is required for financial decisions and transactions

You decide the areas or ‘functions’ that you wish to give to your Enduring Guardian. This may include making decisions such as where you live, what services are provided to you at home, and what medical treatment you receive. The Appointment can include details as to how you wish to be treated at the end of your life e.g. to not be unnecessarily sustained artificially on life-support.

You can revoke the appointment and make another appointment at any time, provided you still have the capacity to make such decisions.

Typically, couples appoint each other as their enduring guardian and appoint an another person as an alternative in case the spouse is not able to act.

Gerber Legal can advise you and prepare your Appointment of Enduring Guardianship when you prepare a Will and Power of Attorney with them.

Do I really need to make a Power of Attorney?

From time to time a person needs someone else to look after their affairs for them. This might be a temporary situation such as being hospitalised or overseas.

A Power of Attorney is as important for life planning as making a Will. Many people prepare a Will but do not give the same consideration to appointing an attorney until it is too late. Appointing an attorney gives your attorney the legal authority to look after your financial affairs on your behalf.

You can appoint an attorney to act for you in a variety of circumstances such as an extended interstate or overseas trip, or for a time, or for a particular transaction, or for when you are no longer able to manage your own affairs, or a combination of these.

For the Power of Attorney to continue be effective if you are no longer able to manage your own affairs, the Power of Attorney must be witnessed and certified by a specified person e.g. a Solicitor.

The key considerations in appointing a person as your attorney under a Power of Attorney is that they must be:

• Competent,
• Available, and
• Utterly trustworthy.

In many cases it makes good sense for spouses to appoint each other as their attorney with an alternative appointment of another person in case the spouse is not able to act.

It is worth looking forward to the possibility that because of age or incapacity you need to rely on a trusted spouse, relative or friend on a more permanent basis. TRUST is the main thing. Although a person has a duty to act in your interests and not their own it can be unclear.

Without a power of attorney those who want to help you may have to apply to the Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) for permission to look after your affairs.

Everyone, but especially seniors, should complete and sign a power of attorney. What to put in the document can be tricky and it’s worth getting legal advice.

Contact Solicitor philip@gerberlegal.com.au for advice and to prepare your power of attorney. Philip can prepare, witness and certify your Power of Attorney.