You may be familiar with the terms Enduring Power of Attorney and Enduring Guardianship, but do you know the key difference between the two and how they may protect you as you age?
It is always best to be prepared for the unexpected as you never know what is around the corner.
Therefore, we thought it would be helpful to share some insight and help you understand both Enduring Power of Attorney and Guardianship.
This also differs slightly state by state in Australia, so we’ve provided you with some specific information per state too below.
What is an Enduring Power of Attorney (EPOA)?
Enduring Power of Attorney is a legal document that enables an appointed individual to make decisions financially, on behalf of someone who no longer has the capacity to do so. This includes making decisions relating to their bank account, bills and/or property.
There are many benefits associated with having an Enduring Power of Attorney, one of which is that it will continue to operate even if you may lose full legal capacity. Which will ensure that your wishes and requests are honoured. The person you list in your document will then be your EPOA.
What is the difference between a General Power of Attorney and an Enduring Power of Attorney?
Unlike a General Power of Attorney, an Enduring Power of Attorney continues regardless of whether the person has lost capacity.
Who can be my Enduring Power of Attorney?
You can select anyone to be your Enduring Power of Attorney if they are over the age of 18 years old and are not receiving payment from you for any personal services.
What is Enduring Guardianship?
Enduring Guardianship is also a legal document similar to the Enduring Power of Attorney however this document allows you to nominate someone to make medical decisions on your behalf. This person will then be your Enduring Guardian.
The benefit of this document is that although the nominee can make medical decisions, they cannot make any changes to any health care instructions in your will.
According to the Enduring Guardianship Regulation 2016, they may also be able to make decisions relating to whether you go into assisted living facilities.
What is the difference between the two?
Although both the Enduring Power of Attorney and Enduring Guardianship are legal documents that nominate someone to make decisions on your behalf they differ greatly.
The Enduring Power of Attorney for example only covers financial decisions and not those relating to your medical decisions.
However, the Enduring Guardianship document only covers decisions related to your medical matters and not your financial decisions
Can I appoint the same person to be both my Enduring Power of Attorney and Enduring Guardian?
You can appoint the same person to be both your Enduring Power of Attorney and Enduring Guardian.
However, due to the power it may give someone, it is recommended to choose someone you know well and trust.
The person you choose does not need to have any legal qualifications to be nominated to be either your EPOA or EG.
If the person you have nominated decides that they cannot act as your Attorney or Guardian then your substitute will be asked.
In your document, you can provide two options in case an incident occurs.
Do I need to have both an Enduring Power of Attorney and an Enduring Guardianship?
You do not need to have both an EPOA and EG, when deciding it is encouraged to look at your circumstances and decide whether it is needed.
It is important to note that if you lose the capacity to make a decision due to health, you will be unable to revoke either document.
Can a Will be counted as an Enduring Power of Attorney or Enduring Guardianship?
A Will is also a legal document, however, the contents within it discuss how they wish their personal assets to be distributed after they pass.
The difference between a Will and the EPOA and EG is that it does not mention who will be making decisions on your behalf when you’re alive.
It is important to understand the three to ensure your health and property are looked after by a trusted nominee.
How can I create an Enduring Power of Attorney and Guardianship?
It is never too late to make an EPOA or EG.
If you do not have either an EPOA or EG and wish to create one, we recommend you discuss this with your lawyer.
If you lose mental capacity and have not created an EPOA or EG then your family can apply to the State Administration Tribunal to be appointed.
If you would like to learn more about either legal document please check out the links below:
Talking to your family about these things can be difficult, but making your wishes known will help if someone needs to act on your behalf in the future.
Where can I find more information about Enduring Power of Attorney and Guardianship in my state?
The process can differ slightly from state to state, so we’ve prepared some information below to find your specific state-wide information.
Victoria:
- Enduring Power or Attorney: https://www.publicadvocate.vic.gov.au/your-rights/enduring-power-of-attorney/making-a-power-of-attorney
- Enduring Guardianship: https://www.health.vic.gov.au/patient-care/guardianship-and-least-restrictive-practice-in-victoria
New South Wales:
- Enduring Power or Attorney: https://www.nsw.gov.au/family-and-relationships/planning-for-end-of-life/enduring-power-of-attorney
- Enduring Guardianship: https://www.tag.nsw.gov.au/wills/appoint-enduring-guardian/what-enduring-guardian
Australian Capital Territory:
- Enduring Power or Attorney: https://www.ptg.act.gov.au/enduring-powers-of-attorney
Queensland:
- Enduring Power or Attorney: https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/power-of-attorney-and-making-decisions-for-others/power-of-attorney
- Enduring Guardianship:
South Australia:
- Enduring Power or Attorney: https://www.sa.gov.au/topics/family-and-community/planning-ahead/power-of-attorney-and-advance-directives
- Enduring Guardianship: https://www.agd.sa.gov.au/legal-rights/guardianship
Northern Territory:
- Enduring Power or Attorney: https://nt.gov.au/law/processes/power-of-attorney
- Enduring Guardianship: https://publicguardian.nt.gov.au/guardianship/applying-guardianship
Western Australia:
- Enduring Power or Attorney: https://www.wa.gov.au/service/justice/civil-law/enduring-power-of-attorney
- Enduring Guardianship: https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/enduring-power-of-guardianship
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