My Parents Need An Enduring Power of Attorney & An Appointment of Enduring Guardian
My Parents Need An Enduring Power of Attorney & Appointment of Enduring Guardian, so what are these documents, how do we go about arranging this and what is the process?
So What is an Enduring Power of Attorney & an Appointment of Enduring Guardian?
An Enduring Power of Attorney is a document which allows the Principal (being the person making the document eg Mum or Dad) to appoint one or more people to enter into legal and financial transactions on their behalf, even in the event that they have lose mental capacity after they have signed the document (this is the part about it being ‘enduring’). This document can come into effect at a nominated point in time:
- When the Attorney signs their acceptance on the document (allows for use at anytime and in particular when someone is physically unable to attend to make transactions due to medical issues);
- Once a medical practitioner considers that I am unable to manage my affairs (and provides a document to that effect);
- Once my attorney considers that I need assistance managing my affairs; or
- Other (to be instructed by the client when this will come into effect).
An Appointment of Enduring Guardian on the other hand, is a document which allows the Principal (being the person making the document eg Mum or Dad) to appoint one or more people to make health and lifestyle decisions for them in the event that they are unable to make them themselves. This is the document where an Advanced Care Directive can be put in about end of life decisions (some people refer to this as ‘turning off the life support’) and your decision about whether or not you want nominate for Organ Donation.
There can be more than one Attorney or Guardian nominated. Usually a Husband and Wife will appoint each other as these and then nominate one or more of their children, or other trusted persons, to be their substitute Attorney/s or Guardian/s if the first nominated person ‘vacates office’. An attorney vacates office if the attorney dies, resigns, becomes bankrupt, loses mental capacity or the authority to act is revoked.
If more than one Attorney or Guardian is nominated, then depending on trust and practicalities, such as locations, work hours and commitments of each of those Attorneys or Guardians, then it should be decided how they are to be appointed. There are a few options for this:
a. Jointly (your attorneys must all act together), then you chose one of the following:
- I want the appointment to be terminated if one of the attorneys dies, resigns or otherwise vacates office.
- I do not want the appointment to be terminated if one of the attorneys dies, resigns or otherwise vacates office.
Or
b. Jointly and severally (your attorneys may act individually, or together with the other attorneys if they choose).
How do we go about arranging for Enduring Power of Attorney & an Appointment of Enduring Guardian documents to be done?
To arrange for an Enduring Power of Attorney & an Appointment of Enduring Guardian to be drawn up, then your parents should contact their Solicitor’s office to make an appointment to provide their instructions and receive advice thereon.
What is the process to make an Enduring Power of Attorney & an Appointment of Enduring Guardian?
In most circumstances, we will require 2 appointments with them. They will need to have the initial appointment with their Solicitor to provide their instructions. You will not be able to be in the room with them when they give their instructions.
They will then need a follow-up appointment to sign the Enduring Power of Attorney & an Appointment of Enduring Guardian prepared for each of them.
The persons they have appointed may also need to make appointments with the Solicitors to have the documents explained to them and to accept their appointments on those documents. These can be sent them to sign, however, please note that the Appointment of Enduring Guardian will require a prescribed witness to explain the document to them.
What if they are a bit forgetful?
The person making the Enduring Power of Attorney & an Appointment of Enduring Guardian will need to have capacity to understand what these documents are, to be able to give reasoned instructions to make the documents and to be able to sign the documents.
If there is doubt as to their capacity, a Letter of Capacity should be obtained from their treating Doctors to say whether or not, in their medical opinion, the person has the capacity to understand what these documents are, to be able to give reasoned instructions to make the documents and to be able to sign the documents. This letter should be taken to the appointment with them and handed to Solicitor to keep on their file. Please note it is then the decision of the Solicitor as to whether they believe the person has capacity to be able to go through with making the documents.
Need more information or want to go ahead with these documents? Give us a call at Brazel Moore Lawyers at Gosford NSW on 4324 7699.
For more information regarding Wills & Estate Planning why not attend our upcoming Wills & Estates Seminars.
