What Is a Power of Attorney and Enduring Guardianship

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Article by 

Rita Merienne

And why you may need one sooner rather than later

Having lived through a difficult and emotional situation where our Father’s main carer – our sister passed unexpectedly and was the only power of attorney, I know what an emotionally challenging time it is when you don’t have the “legals” sorted correctly.

Not for one moment did we think that one of us sisters would pass before Dad, but she did.

She was the main carer, so it made sense that she was the only power of attorney. The only one that knew his financial situation and bank accounts.

In a week that we wanted to sit by our darling sister’s bedside – holding her hand, brushing her hair and farewelling her, my other sister and I couldn’t. We had to get Dad to his Solicitor, sort out the new power of attorney, find out where his bank accounts were so we could keep paying his aged care bills.

Dad was legally blind and our sister had taken care of everything for him. Because we were so caught up with the emotional fog of grieving, we didn’t notice that my name was spelt wrong. So we had to go back and do it all again.

We don’t want anyone else to have to go through the added burden of only having one power of attorney and not having the ‘legal’s sorted’. It’s the reason I do what I do in the aged care sector.

There are so many things we didn’t know. So many times we inadvertently took the long way instead finding an easy path. Now I know how important it is to share information about situations that can affect carers and our aged loved ones.

It is why here at Australian Carers Guide we share lived experiences, to make the caring journey easier for others.

The following information shines a light on an area we all need to have sorted as soon as possible.

Who can help?

I asked Althea Willis from Hornsby Wills and Probate what was her main piece of advice regarding estate planning. Without hesitation it was “Do It Early! You never know what is around the corner for you and your aged loved ones.”

Estate planning includes all the legal documentation including wills and aged care directives. This article focusses on only Power of Attorney and Enduring Guardianship.

By getting these documents sorted early you will:

  • Reduce ‘The Great Document Scramble’.
  • Help your aged loved one get what THEY want for their estate.
  • Stop any possible manipulation.
  • Reduce the emotional fog and stress at a difficult time.

Before we dive into this very meaty topic here are some key points that Althea shared with me about how she approaches estate planning with her clients:

  • Having conversations with family members so everyone is on the same page.
  • Knowing where things are all the legal and financial documentation.
  • Doing it early and review regularly.
  • Direct instructions from client –usually one to one in a confidential environment.
  • Assess capacity and no undue influence. Assessment of capacity is very important and a key area of the process, including evidence that you have assessed capacity.
  • Each person’s priorities, family structure are different. It is important for the person preparing the documentation to take the time to understand the client’s situation

POWER OF ATTORNEY (POA)

This document is used for financial and legal issues. It gives the authorised person the power and authority to manage financial and legal issues when you can’t. Having a POA in place early is important as you don’t know when you need it.

We also suggest you have at least two people authorised as the Power of Attorney, you never know something may happen to one of the signatories as was the case with my family.

Each Australian state and territory allows for the appointment of an enduring power of attorney. However, each jurisdiction has separate and distinct legislation.

The Power of Attorney signatory will need to have several certified true copies of the document as they will need to be given to Centrelink, the bank, utilities, council, the Doctors and any other organisation that requires a copy to allow another person to deal with accounts.

ENDURING GUARDIANSHIP

This document is used for medical and lifestyle issues. The signatories will be making decisions regarding any medical treatment and lifestyle. This can be very challenging and it is important that this signatory is aware of your wishes especially regarding resuscitation wishes.

You can have a different person to the POA, actually it is recommended that you do have different people, however it is important that both know about each other.

It is also important to have two or authorised signatories for this document too.

A few key aspects for both documents are that you can have more than one signatory, cascading, and dictate terms–appointments and restrictions. Knowing the power you are giving to others is important.

This is why you need to do this early, before diminished capacity! So you get a say!

There is a lot of information about Estate Planning and it is important to seek professional advice however I wanted to share with you what happens if these two documents aren’t in place when you or a loved one passes.

POA:

There is no option but to apply to the Civil and Administrative Tribunal in your state. No default provisions. This is why it is so important to have these in place prior to diminished capacity. Do this early so you get to choose who is going to manage your financial issues.

The tribunal may not choose who you want or even a family member.

Get this done early – talk to you all your family – you, your aged loved ones and your kids who have assets. It is never too soon, but it can be too late!

ENDURING GUARDIANSHIP:

The precise rules in each state will differ. In NSW, there is a hierarchy of people who can make decisions for your under the Guardianship Act. 1987 (NSW). Where you have no enduring guardian the hierarchy allows your spouse to make decisions for you. If there isn’t a spouse it is important to put this in place so you get to choose who you want.

I always knew that this was a complex and complicated area but I didn’t realise how much a professional will help with estate planning and how important it is to have a person you trust to make a hard time easier. Knowing what to ask, what to include and how to construct the documentation properly so your wishes are carried out.

Our advice is to go and see a professional. Money well spent for peace of mind and helping to ease the emotional fog of the administration of estate planning.

Althea has shared some of the areas that need to be considered however, but there is so much more to estate planning than we have mentioned here today.

You don’t know what you don’t know!

Having a professional will help you have your choices documented so it will relieve some of the emotional fog for your loved ones.

Althea is available at hornsbywillsandprobate.com.au to help you with your estate planning

Disclaimer: This article is to highlight the need for Estate planning, and is in no way telling you what your choices should be. It is to let you know you have a clear process available so your choices are recorded.

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