It can be very confusing when terms such as executors, wills, appointment of power of attorney, enduring power of attorney, enduring guardian and advanced care directive are bandied about.
So let’s see if we can make it a bit clearer for you.
Executors are the people you choose to administer your estate when you die, so they are appointed in your Will. Out of all these documents the Will is the only document that has effect in the event of your death. See our article ‘Do You Have a Valid Will?‘ for more information about Wills.
All the other documents only have effect when you are alive; they cease to work as soon as you die.
Power of attorney is appointing another person or persons to make decisions about your financial affairs.
What an attorney can do:
- Access your bank account, withdraw your money;
- Pay your bills;
- Buy/sell shares on your behalf;
- Buy /sell property on your behalf, if the power of attorney document is registered with the relevant land title office in the particular Australian State or Territory;
- Anything you can do with your finances;
- You can place limits on what your attorney can and can’t do.
What your attorney can’t do:
- make medical, healthcare or lifestyle decisions for you.
There are two types of power of attorney – general and enduring.
General power of attorney is only effective while you have mental capacity – it is often used for a specific purpose i.e. when you go on an overseas holiday and you need someone to manage your financial affairs whilst you are away.
Enduring power of attorney continues to operate if you lose mental capacity – appointing an enduring power of attorney gives you peace of mind into the future, as you can appoint the person you trust to manage your financial affairs and who will know what you want to occur. If you have not appointed an enduring power of attorney and an unforeseen event occurs in which you lose the capability to manage your financial affairs, the court may appoint you a financial manager, this is a costly process and the person the court appoints may be the last person you want looking after your finances!
Enduring guardian appoints a person or people to make medical, lifestyle and health care decisions for you in the event that you are unable to do so yourself.
What your guardian can do:
- Consent to medical/dental treatment;
- Withhold consent for medical/dental treatment;
- Decide where you can live;
- Only operates after you lose capacity.
What your guardian can’t do:
- Make financial decisions;
- Consent to experimental medical treatments.
An Advanced Care Directive allows you to give specific directions, or instructions to doctors and health care workers, about your future medical treatment, for a time when you may not be able to speak for yourself. It is usually made in consultation with your general practitioner and provides a means of specifying exactly what you want done in particular circumstances.
Although there are different forms for each of these documents for each Australian State and Territory, if the document complies with the relevant legislation in the state or territory in which it was made it will generally be valid in the other states or territories.
To appoint an enduring power of attorney or an enduring guardian you require a prescribed witness to ensure that you understand the implications of the document. The documents themselves are also of a prescribed format that can be adjusted to suit your personal circumstances. Having a lawyer draft these documents in consultation with you will ensure your individual requirements are met.
To make sure you get the advice that suits you call 1300 MY LAWFIRM (1300 69 5293) or email us at firstname.lastname@example.org
Nikki is a Director of Pacific Legal & Conveyancing where our vision is to provide technologically advanced, efficient, ethical legal services and conveyancing, which exceed our clients’ expectations.
Pacific Legal & Conveyancing