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Do I need to appoint an enduring guardian if I already have an enduring power of attorney?

Posted on 24th January 2017
Catherine Henry Lawyers
Catherine Henry Lawyers

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Enduring guardian

Yes, it’s important to have both an enduring power of attorney and an enduring guardian in place. Both of these important legal documents are normally created as part of your estate plan but they have very different purposes.

Here’s the difference:

  •  When you make an enduring power of attorney you appoint someone to deal with your financial affairs in the future, including if and when you lose the mental capacity to handle your own financial affairs.
  • When you make an appointment of enduring guardian, you appoint someone to make health and lifestyle decisions for you, if you lose the mental capacity to make those decisions yourself.

Consider this scenario to demonstrate the different roles of attorney and guardian:

John is suffering from advanced dementia and needs to move into an aged care facility. Several years ago, before his health started declining, John appointed his sister Janice as his enduring guardian. He also appointed his daughter Lily as his attorney.

It is Janice’s role as guardian to decide which aged care facility John should move to and the services he should receive there. It is Lily’s role as attorney to handle the financial aspects of John’s move, including payment of any funds required by the aged care facility on entry and any ongoing fees. If necessary, Lily will also arrange the sale of John’s home in order to fund his care.

By appointing people you trust as both your enduring power of attorney and your enduring guardian, you can have peace of mind that your affairs will be taken care of as per your wishes.

Here are some points to consider as you decide who to appoint to each role:

  • Are they willing to take on the role?
  • Are they trustworthy? Is your attorney good at dealing with money matters? Is your guardian likely to make decisions about your health and lifestyle that you would be happy with?
  • You can appoint the same person, or people, to both roles. Or you can have different people in each role, as John did in the scenario above.
  • If you decide to appoint different people as your attorney and guardian, is there likely to be disagreement between them about your affairs? Using John’s scenario as an example, what would happen if Lily and Janice disagree about what’s best for John? Janice has authority to make decisions about where John will live, but what if Lily refuses to facilitate the move by making the necessary financial arrangements? In practical terms, John’s move to the facility will be in jeopardy.
  • You can appoint more than one attorney and more than one guardian i.e. they will share the role.
  • If you do appoint more than one attorney or guardian, do you want them to make all decisions together? Or are you happy for each of them to make decisions alone? For example, if one of your guardians is not available can the other guardian make decisions for you alone?

Adults of all ages should have both an enduring power of attorney and appointment of enduring guardian in place. It’s often something people put off for a later time because it may not seem urgent. However, unexpected things do happen. It really is best to be prepared.

Feel free to contact our Estate Planning team (on (02) 4929 3995) to discuss your power of attorney and appointment of enduring guardian.

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