What is the difference between Enduring Guardianship and Power of Attorney?
Any person may give the right to make decisions on their behalf to another or others through legal documents known as Powers of Attorney and Appointment of Enduring Guardian. Whilst the documents are generally used by people to confer those rights once they become incapable of managing their own affairs through mental or physical incapacity, the extent of the rights given and the timing of the implementation of the exercise of rights is many and varied.
Powers of Attorney
The person making the appointment is called the Principal, and the person being given the power is called the Attorney.
A Power of Attorney authorises the Attorney to make decisions pertaining to the legal and financial affairs of the Principal, including signing any document or entering into any transaction which the person could legally have entered into themselves. In practical terms, examples of how the power can be used include managing the household utilities, accessing bank accounts to ensure bills are paid, manage investments, engaging trades to perform repairs or renovations to the home, communicating with government agencies such as Centrelink, and if necessary selling property in preparation for transition to aged care.
There are essentially two types of Powers of Attorney, a General Power of Attorney and an Enduring Power of Attorney.
A General Power of Attorney will operate during the time that the Principal retains their capacity and may be as broad or limited as the donor decides and may operate generally or only for a specific time or extend to certain decisions only. It ceases to operate after a person loses mental capacity.
An Enduring Power of Attorney is a document under which the Attorney’s powers will continue to operate after the Principal loses capacity. Quite often, a donor will restrict the operation of the Power of Attorney to circumstances where they have in fact lost capacity to manage their affairs through mental disability (and does not operate until such time), adding the protection that the incapacity must be certified by a duly qualified medical practitioner before the power is enlivened.
Usually, a close family member or friend will be appointed as the Attorney. It is common for spouses to appoint each other in the first instance, and if the spouse is unable to perform the role, then an adult child is nominated as the substitute Attorney.
Given the broad ranging powers which can be given, the Attorney has a very serious duty to act in the interests, and to the benefit of the Principal at all times when dealing with the Principal’s affairs. They are usually required to keep their own property interests and affairs separate. From those of the Principal.
Enduring Guardian
An Appointment of Enduring Guardian is a document which appoints a person to make health and lifestyle decisions on behalf of a person if and when they cannot make those decisions for themselves. The powers of the Enduring Guardian will usually not come into effect until a medical practitioner certifies that the donor does not have the capacity to make decisions about their health and lifestyle decisions.
Examples of the decisions which can be made by an appointed Enduring Guardian include deciding where the donor will live and what services they receive (such as care in the home), medical and dental treatment for the donor and consenting to medical treatments including end-of-life care. Within your enduring guardian document, you can indicate your preference with regard to medical interventions which will not meaningfully prolong your life and make other conditions as to specific healthcare you wish to receive or not to receive.
An Enduring Guardian cannot make financial and legal decisions.
