Everyone needs to consider what will happen if they are seriously injured or become very sick so that they cannot look after themselves or do not have mental capacity to make decisions for themselves any more, but they are still alive.  Most people put off making these decisions either because they hope they die with their full capacity and don't want to think about it, or because they think it will be obvious who makes these decisions.  Unfortunately it is not obvious, nor is there any legislation that says who makes decisions for you if you lose capacity. 




Why do I need them?

Even if you are married your spouse cannot make medical decisions for you, or deal with your more pragmatic issues like bank accounts or selling your car to buy a mobility scooter, unless you have signed documents that specifically give them permission to do this.

Now, while you still have full mental capacity, you can sign documents (Appointment of Enduring Guardianship and Power of Attorney) which set out who will make decisions for you if you lose mental capacity.  You can also give guidance as to what they should do. You can then ensure that the person making decisions for you is someone you trust, and who you would want to be speaking for you if you were not able to do so.



What is a Power of Attorney?

A Power of Attorney is the document that says who can make your more practical and pragmatic decisions.  Basically it gives a person a right to sign any documents that you might need to sign, or to deal with or make decisions in relation to any assets or other financial matters that you would otherwise have authority to deal with.  Some pragmatic examples of what your attorney could do include:


  • Dealing with your bank, including accessing your funds
  • Selling your car or other assets
  • Speaking with your landlord or otherwise dealing with your rental property
  • Cashing in one of your investments, like your superannuation if you are of the correct age, to use those funds to then purchase other assets
  • Booking and paying for services on your behalf like cleaning services

A Power of Attorney can have power at any time, some married couples or business partners have given each other general Power of Attorney even though they have full capacity.  You can also limit your Power of Attorney so that it only applies from the time that you need help managing your affairs, or from the time that you lose mental capacity.  

Your Power of Attorney can only apply after loss of mental capacity if you obtain advise from a lawyer and they sign the necessary certificate.  This is the 'enduring' part, to have an enduring power of attorney you need advise and a certificate from a lawyer.  If you just want a normal power of attorney that applies while you have capacity then that is not enduring, and it does not need legal advice.



What is an Appointment of Enduring Guardian?

The Appointment of Enduring Guardian is sometimes called a Living Will.  It both appoints the person who can make medical decisions for you, and gives some guidance as to the sort of decisions you would like made for you.  Unlike a Power of Attorney the Appointment of Enduring Guardian can only apply from the time you lose capacity, for so long as you have capacity you are the only person who can make your medical decisions.



Aren't they the same thing?

While many people do appoint the same people to both Attorney and Guardian there are some reasons not to do that as well.  On the one hand many of the decisions cross over, so the Guardian has to decide whether you can remain in your home and have nursing care come in, or whether you need to be moved to a retirement village.  The Attorney is the one who controls the assets who can sell something or draw down funds to make either of those things happen.

One reason not to have the same people is that the Attorney should really just be one person.  Like the position of being an Executor of a Will there is a lot of paperwork and errand running, and you are making more work for the person if they have to do that jointly with someone else.  

It might be good alternately to have more than one guardian, unless that guardian is your spouse, because the decisions that have to be made can sometimes be fairly stressful and onerous.  For instance even if you have left specific instructions in your Appointment of Enduring Guardian that you do not want your life extended by artificial means if the doctors advise that you are not going to recover brain capacity, it is still onerous and difficult for the Guardian to give the final word to stop artificial sustenance.  It may be easier if people are jointly making those decisions, as long as those people can work together.



Can't my family just make my decisions?

If you need these documents and they don't exist then there is no assumption regarding who can make these decisions for you.  We had a client who was the spouse for a decade of a man who did not prepare these documents.  When he lost capacity she could not access his term deposit to pay for a car with the proper modifications to transport him.  Worse still, she could not even instruct the bank to stop re-investing the term deposit.


At the same time the children of the man (who were not her children) tried to take her to the relevant Government Tribunal to get an order making them the carer for the father instead of her.  Not only did the Tribunal not make that order, but they refused to make an order providing that the spouse was the carer, because they felt that the family (the children and the spouse) could 'work together and did not need any further orders'.  So this spouse had to continue trying to care for him without having access to his term deposit, his bank account where his Centrelink funds were paid, or being able to sell the house or mortgage the property to pay for any care.  This is just one example of the problems that may be caused by not having these documents.

Even if there were not children who objected to the spouse, the spouse still could not have accessed any of these assets as there is no legislation providing who can act on a person's behalf if they lose capacity.






What should I do?

You should make an appointment today to see one of our solicitors about preparing these documents.  Not only do we have many years of experience helping clients to make and document these difficult decisions, but we are also experienced in the sort of litigation that can arise if the documents are not prepared, or they are prepared badly.  Both of these documents need to have a certificate attached stating that a lawyer has provided you with the necessary advise in order to be binding and so they are not documents that you can prepare on your own.  The reason that the legislators feel that the advise is required is that these are significant documents with significant consequences and you should obtain legal advice prior to making these important decisions.



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