Choosing an Attorney or Guardian is often a difficult task. An experienced lawyer should be there to help you make the right decision, writes experienced Wills & Estates and Family Lawyer, Emily Edmonds.
Introduction
Choosing an Attorney or Guardian is not as easy as it seems. In NSW, 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, the Guardian is the person who makes decisions about where you will live (such as which nursing home you will live in if necessary), what personal services you receive, what health care you receive, and they can also consent to and refuse medical treatment. A Guardian will also 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 QLD, there’s just the one document which is the Enduring Power of Attorney, so the people you appoint are referred to as your attorneys. This document deals with both medical and financial issues.
With both the 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.
How do you decide in which state to register your documents, if you live on the border?
At Attwood Marshall Lawyers, we have lawyers who are experienced in preparing both NSW and QLD documents. During an initial consultation we will sit down with the client and look at no only where they live but where the majority of their assets are held and from there we prepare the documents that are going to best suit their needs.
At what stage of your life should you think about the formal document for choosing an Attorney or Guardian?
The most common mistake the people make when appointing a Guardian or Attorney is that they have left it until it is too late. An accident can happen to anyone at anytime, so for that reason we recommend everyone needs these documents in place. If you have children, or a property mortgage, those elements alone are enough to encourage anyone to ensure their legal affairs are in order should something happen, because your loved ones need to be looked after and have your wishes recorded to do that. We can make these documents at the same time as a Will.
What sorts of things do you look at when choosing an Attorney or Guardian?
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. 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 think about is who do you trust. And it’s not just a matter of thinking “yeah that person will be ok and 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. They will be able to access you bank accounts, sell your property and choose where you live – so you need to make sure you’re choosing people who you trust implicitly and who you know will absolutely act in your best interests.
A lot of people have multiple children and they want to choose all of them for this role – is that a good idea?
This really depends on the situation and the family dynamics. If you have say three children that all get along really well, and there isn’t one who’s living overseas or something like that, and you’re confident that all three would be able to act together harmoniously then having all three of them might not be a problem. Keeping in mind that if you appointed all three of them to act jointly, they would all need to be available in circumstances where they needed to make decisions or sign off on certain documents etc.
You’d imagine whether they get along is also a big consideration?
If however you had three children, and there was one in particular that didn’t get along with the other two, then there’s no way that you would appoint all three of them to act together because it’s very likely that instead of being able to come together quickly to make important decisions on your behalf – they’d be more occupied with fighting amongst themselves and trying to get the third person to agree which is not a situation you want to be in when you’re lying in a hospital bed needing someone to act quickly for you.
How do you help clients to understand who they can trust, during an appointment?
It is tough – we see so many clients who come in and they’re absolutely torn about who they should appoint because they don’t want to upset any of their children. It is not about trying to keep everyone happy. We work through the emotional issues first, try to put them aside; be objective. Then look at real-life scenarios such as…accessing bank accounts, etc, look at examples of real life scenarios to help people to understand who is the person for the role. 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 worst case scenario – what would it look like if you chose the wrong person?
Guardians and Attorneys can into play when you have suffered loss of capacity. If you do decide to appoint someone who you know probably isn’t the best choice but you choose them because you simply want to keep the peace, you can end up in all sorts of trouble. or perhaps you’ve been involved in an accident and you’ve suffered a brain injury, so you no longer have any idea about what’s going on, and this person can then come along and access you bank accounts, they can sell your property and they can put you into a nursing home.
What do you do if you want to change your Attorney or Guardian?
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 just rip up their Enduring Power of Attorney or Appointment of Enduring Guardian 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, and 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 of them, even if you don’t want them to be able to.
How do lawyers help you to choose your attorneys and guardians, and why you should seek legal help to do this?
The most important thing to remember is that Guardians and Attorneys are appointed when you have lost capacity.
As I mentioned at the start of the interview both must be reliable and trustworthy, and at Attwood Marshall we are trained and experienced in how to determine who is best for this role with you, by looking at real life scenarios of when and how these important people in your life have to make decisions for you.
With the incorrect person appointed as a Guardian or Attorney, when you have lost capacity, you may find yourself in dire circumstances – such as being put into a nursing home you don’t want to be in. Or, in the worst case – the person appointed may use money from your account for things you wouldn’t approve of.
It is possible change your attorney or guardian, so if you have heard anything today that has changed your mind you should urgently seek legal advice on how to do that, otherwise the appointment of a Guardian and Attorney can take place at the same time as you write your Will.
