Powers of Attorney and Guardianship

A Power of Attorney is a legal document appointing a person or trustee organisation of your choice, to manage your financial and legal affairs while you are alive. This person or organisation is then known as your attorney.

A Power of Attorney only deals with property and financial matters, and your attorney can sign legally binding documents on your behalf. You may, for instance, be travelling overseas and want to give your attorney access to your bank accounts to pay your bills or manage your finances. Alternatively, it can be useful to have a Power of Attorney if you become unwell and are no longer able to manage your financial affairs.

Making a Power of Attorney does not mean that you will lose control over your financial affairs. It simply gives your attorney formal authority to manage your financial affairs according to your instructions. Your Power of Attorney can be cancelled (revoked) at any time provided you have the capacity to do so.

An ordinary Power of Attorney is only legal while you have capacity. If you want to make sure your attorney can still operate if you lose capacity, you will need to appoint an Enduring Power of Attorney.

An Enduring Power of Attorney will continue to have effect after you have lost your capacity to self-manage. This is important for everyone, but particularly for elderly people.

A Power of Attorney does not relate to decisions about your lifestyle, medical treatment or welfare.

An Enduring Guardian can make decisions for you in areas such as accommodation, health and services, if you lose the capacity to make your own decisions at some time in the future. An Enduring Guardian cannot make decisions about your money or assets.

The appointment of your Enduring Guardian takes effect only if you lose the capacity to make your own major personal decisions. An Enduring Guardian can make decisions in the areas, or functions, specified in their appointment. The most common functions are:

• Accommodation

• Health care

• Medical/dental consent

There are some decisions an Enduring Guardian cannot make:

• Decisions that are against the law for example, euthanasia.

• Making or altering a Will

• Consent to medical or dental treatment when the person is objecting

This information is specific to New South Wales. Other states will have similar documents but they may be referred to by different names and provide slightly different powers.