Most urgent decisions by people reviewing such paperwork are:
- Enduring Power of Attorney
- Enduring Guardianship
- Living Will or Advanced Health Care Directive
With increasing longevity, the only certainties in life are death and taxes – and now, paperwork, a leading superannuation lawyer says.
Peter Townsend principal Townsends Business & Corporate Lawyers says Australians now need, more than ever, to decide on what legal powers are given to other people. The most urgent decisions include Enduring Power of Attorney, Enduring Guardianship, and a Living Will or Advanced Health Care Directive.
Power of attorney is a document which appoints a person to act on an individual’s behalf in relation to the appointor’s property and financial affairs, says Townsend.
‘If an attorney is appointed, this does not mean that the individual has given away their own right to make decisions. That individual can continue to make their own financial decisions and deal with their assets.’
Alternatively the power can be drafted so that it only comes into effect when the appointor becomes unable to make those decisions. In some States, the power of attorney may continue to be valid despite the fact that the individual granting the power loses their mental capacity, provided that certain formal procedures are followed at the time the power is executed.
In some States, a power of attorney can be used to appoint and authorise someone to make medical, personal or lifestyle decisions on the individual’s behalf while in others the power is restricted to decisions and acts relating to the grantor’s property and finances.
‘It goes without saying that the person chosen to hold your power of attorney must be absolutely trustworthy and prepared to do as you have requested,’ says Townsend.
Enduring Guardianship is the designation of a person to look after the appointor’s residential and health care issues if s/he is not able to.
‘The appointment of an Enduring Guardian must be in accordance with the requirements of each particular State,’ says Townsend. ‘In some States it is part of the appointment of a power of attorney, while in others it is separate. An Enduring Guardianship can be revoked at any time.’
The power of attorney is generally limited to property rights, the guardian is more focussed on the appointor’s personal needs, says Townsend.
‘It’s important to remember that the lifestyle decisions made by an enduring guardian may have financial implications and the financial decisions made under a power of attorney may have lifestyle implications.
‘The attorney and the guardian can be the same person to avoid any confusion or disagreement. Otherwise, they will need to work co-operatively together.’
The reference to enduring means that the appointor knows that they may lose mental or physical capacity in the future and want to appoint their own guardian whose powers will continue even though the appointor may become incapable.
A Living Will or Advanced Health Care Directive is a voluntary statement outlining the types and conditions of medical care that the person would prefer in a given situation before requiring that care. For example, if a person is being kept alive artificially but with no hope of recovery it may be helpful to the family to know what the person wanted done in their situation.
A person can also nominate one or a number of substitute decision-makers to make decisions on their own behalf.
These documents set out a person’s wishes in relation to treatment decisions in advance and generally identify: when and under what conditions the directions are to take effect, and who is to have responsibility for substitute decision-making and for what decisions.
All States except NSW have current legislation for creating these documents. However, the right to make a common law health care directive was recognised in NSW in the case of Hunter and New England Area Health Service v A (2009).
Like an Enduring Guardianship, health care directives can be revoked or changed at any time provided the person has the capacity to do so.
contact
Peter Townsend
principal
Townsends Business & Corporate Lawyers
02 8296 6201
0419 448 844
peter@townsendslaw.com.au