We all think we will be young and live forever… that we will always be of sound mind or that an accident / illness will not affect our mental capacity.
Well guess what? It is possible! So why not eliminate the possibilities?!
How you ask?
A Power of Attorney
A Power of Attorney document allows you to appoint a person to manage matters relating to money for example bank accounts, investments and property you own. It can be used when you are ill, travelling or just unable to manage money matters yourself.
Therefore it is not only used when you lose mental capacity.
You can appoint more than one person as your attorney as jointly and/or severally. It is recommended to appoint someone you can trust and who would be considering your best interests.
You can indicate when you would like the Power of Attorney to commence.
A General Power of Attorney does not continue to apply when you have lost mental capacity.
While, an Enduring Power of Attorney continues after you have lost mental capacity.
In a Power of Attorney you can place limits and conditions on the attorney. For example, that the attorney make no gifts, pay specific bills, manage a particular property or look after the living/ medical expenses of your dependents only.
An Enduring Power of Attorney does not give authority until the attorney has accepted the appointment by signing the acceptance. Also, if more than one attorney is appointed, the authority operates only on such attorneys as accept appointment.
You will need to register the Power of Attorney document with the Land and Property Information (NSW) if you would like the attorney to handle real estate you own in NSW.
You may revoke a Power of Attorney so long as you have mental capacity. You must do this in writing by writing to the attorney as well as all parties the attorney has been dealing with on your behalf. If the Power of Attorney has been registered you will also need to register the revocation.
When you die a Power of Attorney is no longer valid.
An Enduring Guardianship
An Enduring Guardianship document allows you to appoint a person to manage matters relating to accommodation, health and lifestyle when you, because of a disability, are totally or partially incapable of managing yourself.
You can appoint more than one person.
As with a Power of Attorney, you should appoint someone you can trust and who would be considering your best interests.
For the appointment to be effective the appointed person must accept the appointment.
An Enduring Guardianship document does not need to be registered. Therefore, you need to store it in a safe place.
You may revoke an Enduring Guardianship so long as you have mental capacity. You must do this in writing. Also note that an Enduring Guardianship will also be revoked by marriage where you have married after the appointment someone other than the person you appointed.
An appointed person cannot resign if you require a guardian and will require approval from the Guardianship Tribunal.
Do I really need these documents?
Consider the following examples:
- You may be stuck overseas as a result of unforeseen circumstances (accident/ illness) and are unable to make it back in time to sign important business/ property documents or attend to the payment of necessary bills. A General Power of Attorney can assist.
- You own a property with someone and you have lost mental capacity. Without an Enduring Power of Attorney they will have to apply to the NSW Civil and Administrative Tribunal in order to sell the property.
- You have been involved in an accident or have become ill and you require accommodation and health decisions to be made on your behalf by someone you love and trust. An Enduring Guardianship can assist.
As can been seen a Power of Attorney and Enduring Guardianship is just as important as making a Will!
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Disclaimer: Please note our blog is for general information only and accuracy of information is not guaranteed. It is not offered as and does not constitute specific legal advice or opinion for you to act or rely on. You should seek legal advice in your state before acting on relying on this information.