Power of attorney

A power of attorney is a written legal document that empowers a person or trustee to manage the legal and financial affairs of the person granting the power of attorney. This person is called the principal. The reasons for appointing an attorney could be as simple as going on an overseas adventure or more serious as a prolonged hospital stay (which does not impede mental capacity). The principal can only act in accordance with the terms of the power of attorney.

It is important to note that this does not mean the principal is releasing their right to manage their own affairs, it just means they are authorising the attorney to do the things that the principal has allowed them to do. A power of attorney ceases to operate if the principal loses their mental capacity.

An enduring power of attorney continues to operate if the principal loses their mental capacity to be able to attend to their own affairs. It allows the attorney to continue to make decisions about legal and financial affairs, in the same manner as a power of attorney.

An attorney must be willing to accept the appointment and promise to:

  • Act in the principal’s best interest
  • Keep the principal’s money and property separate from their own
  • Not gain a benefit from being an attorney
  • At honestly in all matters concerning the principal’s legal and financial affairs

An enduring power of attorney does not allow the attorney to make decisions about the principal’s health and lifestyle decisions and it ceases on the death of the principal, meaning that the attorney must immediately stop acting in their capacity as attorney. The person named as the executor of a deceased’s will takes the place of the attorney in the case of the principal’s death.

Enduring Guardian

Upon appointment, an enduring guardian can make decisions about the principal’s medical, health and lifestyle. This is separate and distinct from an enduring power of attorney, as described above. It is possible to limit the functions of the attorney to specific responsibilities however most commonly an enduring guardian will, upon the principal losing mental capacity, be appointed to make decisions about:

  • Where the principal resides, whether it be at home or in a care facility
  • What health care the principal should receive, including choice of doctors and decisions regarding palliative care.
  • Consent to medical care and procedures, unless objected to by the principal.

Advance Health Care Directive

An advanced health care directive is designed to clearly state a person’s wishes regarding the health care and type of treatment they would prefer to receive should they become incapacitated and unable to make decisions themselves. It appoints someone as a substitute decision maker who has the authority to make decisions on your behalf, subject to the terms that may specifically reject certain care or procedures that they simply find unacceptable.

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