Powers of Attorney and Wills

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General Powers of Attorney

General Powers of Attorney provide authority for someone to make financial decisions on your behalf, for example disposing of assets (such as a house), or operating your bank account. Special Note: if you want your Power of Attorney to be used in relation to land, it will need to be registered with the Department of Lands.

The person granting the power is free to revoke it at any time.

General Powers of Attorney are automatically revoked upon death or upon the person granting the power losing their mental capacity.

 

Enduring Powers of Attorney

The major difference between Enduring Powers of Attorney and General Powers of Attorney is that Enduring Powers of Attorney continue even if the person granting the power loses their mental capacity (although they must have mental capacity at the time the Power is granted). There are special rules for signing these documents.

The person granting the power is free to revoke it at any time.

Enduring Powers of Attorney are automatically revoked upon death.

The NSW legislation governing powers of attorney is the Powers of Attorney Act 2003.

More information: www.gt.nsw.gov.au

Enduring Guardianship

An enduring guardian can make personal decisions on your behalf, such as where you should live, medical treatment you should receive, and services you should receive. Enduring guardianship does not cover decisions around whether or not life support should be turned off.

The NSW legislation governing enduring guardianship is the Guardianship Act 1987.

More information: www.gt.nsw.gov.au

Download at:

http://www.gt.nsw.gov.au/information/doc_36_application_appoint_enduring_guardianship.pdf

Revocation form:

http://www.gt.nsw.gov.au/information/doc_40_revoke_enduring_guardianship.pdf

 

Living Wills (also known as Advance Directives)

A Living Will is a document setting out your wishes around decisions taken to end your life, primarily in relation to the suspension of life support treatments. Prior to signing one of these documents you must confer with your doctor to make sure your directives are appropriate to your needs.

Living Wills are not legally binding in NSW.

See example here.

Another example, which also provides for health care directives, can be found at: http://www.hnehealth.nsw.gov.au/docs/advanced_care_directive.pdf

Wills

A will is a document that only has effect after your death. It governs how your property is to be treated after your death. It can also cover other issues such as the disposal of your body. Importantly for people with minor children, in your will you can appoint a guardian over your children and set up trusts to protect property until the children reach a nominated age.

The law dealing with wills is extremely complex and we strongly recommend that you seek legal advice should you wish to make a will.

Mental Capacity

In order for any of the above documents to be legally binding, the person signing them needs to have the appropriate level of mental capacity at the time of signing. Someone who doesnít understand the nature of the document, or who might have difficulty remembering whether they have signed the document may lack the capacity to enter into that document.

If you are unsure as to whether this applies to you or someone in your care we strongly recommend that you seek legal advice.

IMPORTANT NOTE: The material presented above is provided as information only, not as legal advice. The law is complex and always changing, so if you have a legal problem we strongly recommend that you seek advice from a lawyer. Elizabeth Evatt Community Legal Centre provides free legal advice between 10.00am and 12.00 midday all weekdays but Wednesdays on 02 4782 4155.

Prepared by Mark MacDiarmid 12 December 2006