The essential Estate Planning triad – Will, Power of Attorney and Enduring Guardianship.

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When creating estate planning documents, most people think of a simple Last Will and Testament. However, there are two equally significant documents that all persons should consider drafting and entering into when taking care of their estate planning needs. These additional documents are an Enduring Power of Attorney and an Enduring Guardianship. While these documents sound similar, they have very distinct differences and serve different purposes.

An enduring power of attorney is a document that is entered into between a person and their legal delegate. The legal creation of an enduring power of attorney gives the designated person the right to make any necessary financial decisions on behalf of an incapacitated person. An enduring power of attorney has several attributes. These include:

  1. Giving authorisation to the named person to act as the makers’ attorney
  2. Defining the parameters of the enduring power of attorney’s rights and obligations to the incapacitated individual
  3. The actions of an enduring power of attorney are legally binding
  4. It is revocable at any time by the maker
  5. If you give your enduring power of attorney the right to make real estate decision, they must register the enduring power of attorney with the New South Wales Land Registry Service
  6. Must be 18 years of age or older
  7. Upon regaining a capacity, the enduring power of attorney ceases and the marker resumes the right to make their own legal decisions

One of the most important considerations when appointing an enduring power of attorney is to consider if the person you are designating is trustworthy and financially intelligent. It is imperative to remember that this person, whom you are designating to handle your financial and legal affairs, will have the full legal authority to do so and you will be bound by their decisions. Hence, it is important to think carefully and choose wisely.

The second legal document to consider drafting is an Enduring Guardianship. Like the enduring power of attorney, you will need to designate someone you trust to act as your enduring guardian. However, the decisions of an enduring guardian are quite different in nature than that of a power of attorney. The attributes of an enduring guardianship include: 

  1. The enduring guardian will be making decisions pertaining to your health and welfare
  2. The power to make these decisions will only come into effect if you are incapacitated and unable to make your own health and welfare decision
  3. An enduring guardianship can be revoked at any time
  4. Upon regaining your capacity, the right to make your own medical decisions reverts to you
  5. Your enduring guardianship papers do not need to be registered with any organisation
  6. The person you choose must be over the age of 18
  7. You can direct the particular lifesaving or treatment options you prefer, requiring your designated enduring guardian to carry out your wishes with exactness

Again, one of the most important aspects of making this type of designation is to choose someone who will abide by your wishes for various aspects of your healthcare including; the insertion of a feeding tube, the use of extraordinary measures to prolong life, the decision to remove respirators or other lifesaving equipment and possible organ donation. Therefore, it is imperative to choose someone who can handle the emotional aspects of making all of these decisions in exact accordance with your instructions.

It is possible to designate the same person to act as both your enduring power of attorney and your enduring guardian. In addition, it is permissible to elect a secondary person in the event that the person you designate is unable to fulfil their obligations. However, in both instances, it is important to meet the legal requirement that the designee is over the age of 18 and the personal requirement of sound judgement and trustworthiness.

In the event that you are creating a Will or revising a Will, and you have not yet considered or completed either an enduring power of attorney or an enduring guardianship, you should consider researching and inquiring about doing so with your current attorney. By making these provisions you protect your right to choose which responsibilities and rights you would like to allow another individual to enact on your behalf, thereby protecting both your assets and your health care desires.

If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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