Power of Attorney, Enduring Guardianship, Advanced Care Directive and Will Differences

Power of Attorney

A Power of Attorney is a document that gives someone (or more than one, if you wish) authority to deal with your assets while you are alive. You (the “principal”) must sign the document, and so must the person(s) you appoint (your “attorney(s)”).

The Power of Attorney can give the attorney specific powers or can be unconditional, which means that the attorney has all the powers of the principal.

A general (or ordinary) power of attorney gives the attorney authority to deal with your property but will automatically terminate if you lose mental capacity.

An enduring power of attorney is one which continues to operate after you have lost mental capacity.

A Power of Attorney can be used to access your bank accounts or to conduct court proceedings.

Your power of attorney must be registered with the Land & Property Management Authority if your attorney is to have power to sign documents dealing with real estate or a Water Access Licence.

Enduring Guardian

An Appointment of Enduring Guardian is a document that gives someone (or more than one, if you wish) authority to make health and lifestyle decisions on your behalf if you lose the capacity to do this for yourself.  You (the “appointor”) must sign the document, and so must the person(s) you appoint (your “guardian(s)”).

You choose which decisions you want your guardian to make. These are called functions. You can direct your guardian on how to carry out the functions.

The Appointment of Enduring Guardian can also make provision for what steps your guardian should take if you are on life support or suffering from an incurable illness.

It is important also that you talk to the guardian(s) you appoint about the types of decisions you want them to make if you are not capable to making them.

Advance Care Directive

If you get very sick and need specialist medical or hospital care, then you can prepare a document, called an Advanced Care Directive, in consultation with your doctors, setting out details of the medical care you are to receive if your illness is a progressive one.

Will

A Will is a document that gives someone (or more than one, if you wish) the power to deal with your assets after you die in accordance with the directions you give as to whom should inherit your assets. You (the “testator”) must sign the document, but the person(s) you appoint (the “executor(s)”) do not. Your executor(s) must also ensure that any debts you have at the time of your death are paid and finalise tax returns and the like.

It is very important that you have a Will, a Power of Attorney and an Appointment of Enduring Guardian.  If you do not have these documents, it can be very difficult for people to help you if you get sick or to properly deal with your assets if you die.

For more information, contact:

Michael McHugh BA LLB (Hons)

Accredited Specialist – Property Law

Australian Legal Practitioner