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Powers of Attorney & Guardianship

Equally important as a Will but often overlooked, a Power of Attorney sets out what shall happen with you and your affairs if you lose capacity during your lifetime or otherwise cannot manage your affairs (for example due to absence overseas).

Unlike a Will that deals with your affairs once you have died, a Power of Attorney sets out what shall happen to you and your affairs whilst you are alive, but are unable to act.

What Happens If I Do Not Have a Power of Attorney?

There are essentially two different types of powers that can be granted when it comes to a Power of Attorney. The first is a General Power of Attorney.

The effect of this type of Power of Attorney is limited to management of financial affairs whilst you still have legal capacity.

The Second type of Power of Attorney is an Enduring Power of Attorney. An Enduring Power of Attorney’s primary purpose is to set out who will manage your affairs if you lose legal capacity.

If you lose capacity during your lifetime and you do not have an Enduring Power of Attorney then your affairs will be taken over by a government organisation, such as the Public Trustee in Queensland or the Office of the Protective Commissioner in New South Wales.

Essentially you will have a stranger making your decisions for you. By making an Enduring Power of Attorney you determine who will manage your affairs in the event that you lose capacity.

Options Available

There are several different options available when it comes to Powers of Attorney and Guardianship:

Queensland

In Queensland you can:

  • Appoint an attorney/s pursuant to a General Power of Attorney to manage your financial affairs generally except when you are incapacitated;
  • Appoint an attorney/s pursuant to an Enduring Power of Attorney to manage your financial affairs and/or if you lose capacity your personal/health affairs. The personal/health power essentially allows the appointment of a guardian;
  • Complete an Advanced Health Directive which gives you the opportunity to determine the type and extent of medical care that you receive if you become incapacitated.

New South Wales

In New South Wales you can:

  • Appoint an attorney/s pursuant to a General Power of Attorney to manage your financial affairs generally except when you are incapacitated.
  • Appoint an attorney/s pursuant to an Enduring Power of Attorney to manage your financial affairs both generally and when you are unable to do so yourself due to incapacity.
  • Appoint an Enduring Guardian to manage your personal affairs in the event that you are unable to do so due to a loss of capacity.

How We Can Help

We can help by:

  • Drafting and preparing a Power of Attorney or other related document for you;
  • Identifying possible concerns or risks that should be considered;
  • Evaluating and determining what options you have to give effect to your wishes;
  • Explaining the meaning and effect of your Attorney or other related document;
  • Reviewing your Power of Attorney with you upon your request.

For further information please contact: