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What happens if I don’t have an Enduring Power Of Attorney?

Powers of Attorney are an important legal document that I encourage all of my clients to make. By simply having a valid power of attorney in place will help to eliminate the expense and stress on your loved ones having to go through the Guardianship and Administrative Tribunal to be appointed as your Attorney.

Types of Powers of Attorney

There are two types of Powers of Attorney. They are:

  1. A General Power of Attorney; and
  2. An Enduring Power of Attorney.

An experienced solicitor should be consulted prior to signing any Power of Attorney to ensure you are signing the right document for your circumstances.

Capacity

Regardless of which power of attorney you choose, you must have the “capacity” to make such an important document.  There are three elements to making a decision:

  1. That you understand the nature and effect of a decision;
  2. That you can freely and voluntarily make a decision; and
  3. That you are capable of communicating that decision in some way.

In some circumstances it may be necessary for you to attend your General Practitioner and have them certify that you understand what you are entering into.

What’s the difference between a General and Enduring, Power of Attorney?

The difference between the documents is that an Enduring Power of Attorney will “endure” even after you lose the capacity to make decisions for yourself. For example; you may fall ill, you may have an accident or you may just get to an age where you can no longer make decisions for yourself. An Enduring Power of Attorney will allow the person whom you nominated as your Attorney to step in and make financial decisions and personal/health decisions on your behalf.

I usually recommend my clients execute an Enduring Power of Attorney as opposed to a General Power of Attorney for this reason.

What happens if I don’t have an Enduring Power of Attorney?

If you don’t have an Enduring Power of Attorney and you lose the “capacity” to enter into a new document, then your loved ones will not be able to make decisions on your behalf.  This can be an extremely stressful time for your loved ones as they will need to apply to the Guardianship and Administration Tribunal to be appointed as your guardian.  This can also be an expensive process and one which could have been avoided by simply executing a valid Enduring Power of Attorney in the first place.

Who can be appointed as a Guardian in the Guardian and Administrative Tribunal?

The following people could apply to be appointed as your guardian for five years:

  1. Family members;
  2. Close friends;
  3. Professionals;
  4. Anyone with a genuine and continuing interest.

As you can see the list is quite wide. This potentially means you could have someone you do not want to be your Attorney making decisions on your behalf.  Where there is no-one close to you, or there is a dispute, then the Tribunal can appoint the Adult Guardian (a Government entity) to make decisions on your behalf.

How do I remove a  Guardian appointed by the Guardian and Administrative Tribunal?

It is a difficult and long process through the Tribunal.  There is a certain criteria that needs to be met and the Tribunal will decide if it is appropriate to remove the appointed guardian.

If you are considering making a Power of Attorney, or need to make an application to the Tribunal to be appointed as someone’s Guardian, do not hesitate to contact me.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Chloe Kopilovic

Written by—

Chloe Kopilovic

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