What is a Power of Attorney, Enduring Guardian and Advanced Health Care Directive and Why Do I Need One?

Like all insurance policies, we curse the fact we need them and their cost until an event occurs which requires us to call upon them. Powers of Attorney, Appointments of Enduring Guardian and Advanced Health Care Directives can all be considered your personal insurance policies against the vicissitudes of life.


Powers of Attorney

If you appoint someone to be your attorney, they can do almost anything you can do legally except make a Will, Power of Attorney or vote. You can appoint an attorney in this role for a specific period, for instance whilst you are away; or for a specific purpose, for example to sign documents to purchase a house. You can also restrict the power so that it can only be used when you have lost capacity.

The power can be effective immediately. In this case, an attorney can go to the Bank and it is as though you are standing at the bank, managing your own legal affairs. To do this, all an attorney needs to act in your place is a certified copy of the Power of Attorney document together with their own personal identification.

Alternatively, the power may only be used if you become incapacitated mentally. In this instance, the attorney needs a certified copy of the Power of Attorney document, their personal identification and a letter from a treating doctor stating you no longer have the capacity to manage your legal affairs. An attorney must only use the power for your benefit unless the document specifically states otherwise.


What Can an Attorney Do When Acting For Me?

Your attorney(s) can do almost anything that you can, legally, except vote or make a Will. They have the power to do a range of things including advocate for you at Centrelink and Medicare, manage your bank accounts, sell your house and sell your shares. They do not have to ask your permission and there is no one looking over their shoulder. An attorney may also act as you in Court and enter into loan agreements. Unlike an enduring guardian, an attorney cannot make decisions about your medical treatment.


Appointments of Enduring Guardian

An Appointment of Enduring Guardian only comes into effect when you are no longer able to tell your health care providers and others what your personal needs are. Therefore a guardian can make decisions for you around where you live, what health care you receive, what other kinds of personal services you receive, what medications you take, what nursing home you will live in, whether you will get the cosy slippers or the orthopaedic slippers etc.


Advanced Health Care Directives

An Advance Health Care Directive is your voice to your health care providers when you no longer have a voice, and often surrounds your end of life decisions. It is particularly valuable when your guardians will struggle with those end of life decisions. It is very difficult for a loved one to make the decision to let someone pass peacefully when there is still a breath to be taken or a heart to beat regardless of potential poor quality of life of the person for whom they now make those decisions. This document enables you to give direction about your wishes, for example if you are on life support.


Why Do I Need the Above?

Never before has the world seen so many people living to their 80s and 90s. With the aged population increasing, it is important to consider who might act for you when you are unable to manage your affairs.

Alzheimer’s Australia informs us that every six minutes someone will be diagnosed with alzheimers or dementia in Australia. By 2050, 10% of the present population across OECD countries will be over 80 years of age. 25% of these people will need care. In the next five years, for the first time in human history, the number of adults aged 65 and over will outnumber children under the age of five. By 2050 these older parents will outnumber children under the age of 14 so this leads to changes in social structures and services as well as tax bases.

Treasury projections show that the government is spending over $14 billion a year on aged care. The increase in government spending is outstripping the growth in GDP and this gap is widening, meaning aged care is becoming unsustainable. Whilst the government will assist with subsidies where applicable, it is not, and cannot, be a government provided service.

We must all be prepared for what will be an eventuality for many of us. You should ask yourself:

  • Do I have plans in place around how my winter years are to be; and
  • Do I have a trusted decision maker in place when I can no longer make vital decisions around how I will fund my winter years and how I will manage my declining health?

If you would like further information about Powers of Attorney, Appointments of Enduring Guardian and Advanced Health Care Directive, contact our friendly and professional Estate Planning and Elder Law Team.


VeronicaNashAbout Veronica Nash: Veronica is a senior member of the Estate Planning and Elder Law Team at Aubrey Brown. She is highly experienced and skilled in this area of law with 20 years of practice in this area alone as well as experience in other areas of law. Veronica has expertise in Powers of Attorney, Appointments of Enduring Guardian and Advanced Health Care Directives as well as in Wills, Probate, Estates, Elder Law and Trusts. To make an appointment with Veronica, call us today on (02) 4350 3333 or email Veronica.

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