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power of attorney and enduring guardianship
18 March 2022

A timely question – who should manage your affairs when you can’t?

Zoey Donnellan

Senior Associate

From the ending of Britney Spears’ conservatorship to the current media coverage of Australia’s system, there is a lot of media attention right now about who can be put in charge if there is a question about your capacity to manage your own affairs.

You can take steps now to control the outcome by making decisions before any questions arise. In Tasmania there are 2 important documents that give you the freedom to choose who is to be appointed rather than leaving it to be decided by others at the time.

  1. Power of Attorney

A power of attorney is a document which allows you to appoint attorney(s) to look after your financial affairs for you. This includes dealing with your bank accounts (opening accounts, withdrawing money), reporting to Centrelink, paying your bills and dealing with property. For example, a power of attorney would be used to sell your home for you in order to fund the cost of living in a nursing home if required.

Common misconceptions about powers of attorney:

  • In Tasmania your attorney can only look after your finances. A power of attorney does not authorise your attorney to make medical or lifestyle decisions for you.
  • A power of attorney in Tasmania comes into effect as soon as it is registered. While most people make a power of attorney in case they lose capacity, your attorney is legally able to make decisions on your behalf immediately following registration. A lot of people are hesitant about this notion as it feels like a loss of independence – but nothing really changes. You can still manage your affairs as normal, there is just someone that can step in to help out if you ask them to or if you have lost capacity and need them to take over for you.
  1. Enduring Guardianship

An enduring guardianship allows you to appoint guardian(s) to look after your medical and lifestyle decisions. It means your guardian can choose what medical treatments you do or do not receive and can decide if you should be moved into an aged care facility.

Unlike a power of attorney, even though an Enduring Guardianship is also registered, your guardian can only step in as decision maker if you lose capacity.

An enduring guardianship allows you to include conditions or directions so that a decision is made ahead of time. For example, you could specify the nursing home you prefer, or specify whether or not you want to receive medical treatment if you are unlikely to recover and cannot communicate.

You can revoke both of these documents at any time provided that you have the capacity to do so. There is also the power for others to report your attorney or guardian if they suspect wrongdoing. This is handled by TASCAT (Tasmanian Civil & Administrative Tribunal).

The system is not failproof – both the Power of Attorney and Enduring Guardianship relies on your attorney(s) and guardian(s) not to abuse their power and act appropriately. However, making a Power of Attorney and Enduring Guardianship gives you the opportunity to appoint the people that you trust most.

Every jurisdiction handles these matters slightly differently, so it is important to be aware that if you have just moved to another state from Tasmania or vice versa that you check that anything you have in place is still suitable for you.

 

To speak with Simmons Wolfhagen Hobart or Launceston legal team about a Wills and Estate Planning matter call our Hobart office 03 6226 1200 or Launceston 03 6338 2390.

Or contact us by email today.

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