Attwood Marshall Lawyers, Wills & Estates Lawyer, Emily Edmonds, discusses the role Guardians and Attorneys play if you lose capacity.
Appointment of Enduring Guardian and Enduring Power of Attorney documents
In New South Wales, there are two documents that can appoint people to manage your affairs in the event you lose capacity – an Enduring Power of Attorney which deals with financial matters, and an Appointment of Enduring Guardian which deals with health and lifestyle issues.
If you lose capacity, a Guardian is the person who makes decisions about where you will live, including which nursing home you will live in if necessary, and what personal services and health care you will receive. They can also consent to and refuse medical treatment on your behalf. A Guardian will be able to access your confidential medical information such as medical records and test results.
An Attorney is the person who manages your assets and finances. They will have the power to access your bank accounts, sign contracts to sell property, and deal with government departments such as Centrelink on your behalf.
In Queensland, there’s a single document used to appoint people to this role which is the Enduring Power of Attorney. The people you appoint are referred to as your Attorneys. This document deals with both medical and financial issues.
With both NSW and QLD documents, you can appoint the same person or people to act for both medical and financial matters or you can appoint different people to undertake each of the roles.
If you live on the border, how do you decide which State to register your documents?
Attwood Marshall Lawyers are experienced in preparing both NSW and QLD documents. Your lawyer will look at where you live and where the majority of your assets are held. From there it can be decided which documents will be most suited.
At what stage of life should someone consider appointing a Guardian and an Attorney?
People often make the mistake of leaving it until it is too late to appoint a Guardian or Attorney. An accident can happen to anyone at any time. For this reason, it is recommended that everyone should have these documents in place. For those with children, or a property, these elements alone are enough to encourage anyone to ensure their legal affairs are in order.
Appointing a Guardian and/or an Attorney can be organised at the same time as writing a Will.
What needs to be considered when choosing a Guardian and an Attorney?
Deciding who you want to appoint can be a very difficult task. Normally, if you are married or in a de facto relationship, you will appoint your spouse to act solely. But for people who are single or are in a relationship with someone who doesn’t have the ability to act as an Attorney or Guardian, it can be quite tricky.
The main thing you need to consider is who do you trust. It’s not simply a matter of thinking someone will do an “alright” job, because if these documents come into effect, this person, or these people, are going to have complete control of your life. You need to make sure you’re choosing someone who you trust implicitly and who you know will absolutely act in your best interests.
Another issue is should you appoint one person or two? Generally speaking, it is safer to appoint two attorneys to act jointly so that they can keep an eye on each other and make sure nothing is done illegally. You need to be careful the two people you appoint are not likely to act in concert to possibly misappropriate funds for their own use. Sometimes, it may be appropriate to appoint an independent co-attorney who is a professional (e.g. an accountant or lawyer).
Another very important, but often overlooked issue is whether the appointment should be immediate or only after you have lost legal or mental capacity. Sometimes the issue of whether you have lost mental capacity can be very complex and disputed. Most couples appoint each other on the basis that the appointment is ‘immediate’.
Can you appoint multiple adult children for this role?
Whether it is appropriate or not to appoint all children depends on the situation and the family dynamics. For example, if you have three children that get along well, all live in close proximity, and you’re confident they would be able to act harmoniously together, then having all three appointed might not be a problem. You must keep in mind that if you have appointed all three children to act jointly, then they would all need to be readily available to make important decisions or sign documents.
If however you had three children, and one child didn’t get along with the others, then it would be unwise to appoint all three to act together. In this scenario, it’s likely that instead of being able to make important decisions quickly on your behalf – your family members would be more occupied with fighting amongst themselves. This is not a situation you want to be in when you’re lying in a hospital bed needing someone to act quickly for you.
In this scenario, you may be better to consider an independent attorney or co-attorney to act with one of your adult children.
How does Attwood Marshall Lawyers help clients choose who to appoint?
We see many clients who come in and they’re absolutely torn about who they should appoint to be their Guardian or Attorney. It is a tough decision, but we try to remind our clients that they need to make themselves the priority; it is not about trying to keep everyone else happy. We work through the emotional issues first, try to put them aside, and look at the matter objectively. We discuss examples of real-life scenarios to help our clients better understand the function of each role and the power that their Guardian or Attorney would have. For example, we identify who they would be comfortable with accessing their bank accounts. By the end of the process we usually have a very good idea of who the best person is to appoint as Guardian or Attorney.
In a worst-case scenario – what would it look like if you chose the wrong person?
Guardians and Attorneys come into power when you have suffered loss of capacity. If you decide to appoint someone who you know probably isn’t the best choice, you can end up in all sorts of trouble.
A worst-case scenario could be if you’ve been involved in an accident, you’ve suffered a brain injury, and you no longer have capacity to manage your own affairs. If you have appointed someone who does not have your best interests at heart, they can access you bank accounts, sell your property and put you into a nursing home – and they can do all of these things without your approval.
What can you do if you want to change your Guardian or Attorney?
If you have documents in place and you want to change who you have appointed, then this needs to be done properly. We see a lot of clients who think that they can simply rip up their Enduring Power of Attorney or Appointment of Enduring Guardian documents and that’s the end of it, but it’s not.
For someone to be removed as an attorney or guardian, a formal Revocation needs to be prepared and signed. This then needs to be sent to the person who you no longer want as your Attorney or Guardian. If you don’t serve this Revocation on them, then they can still use the documents if they have copies, even if you don’t want them to be able to.
How can Attwood Marshall Lawyers help?
The most important thing to remember is that in most cases, Guardians and Attorneys come into power when you have lost capacity. There are also Enduring Powers of Attorney where the appointment is ‘immediate’. This means that the attorney is authorised to act and sign for you from the moment it is signed. These people must be reliable and trustworthy as he/she or they can do whatever you can do legally on your behalf (including walking into your bank and withdrawing all of your money).
Attwood Marshall Lawyers are trained and experienced in working with clients to determine who is best for this role.
It is possible to change your Attorney or Guardian if you are not comfortable with who you have chosen. If you wish to revise any documents you currently have in place, you should urgently seek legal advice on how to do so. Alternatively, you can organise these documents at the same time as completing your Will.
Read more: Increase in requests for Wills and Enduring Power of Attorney
Read more: Major changes to Enduring Power of Attorney, Enduring Guardian and Advanced Health Care Directive laws
