Powers of Attorney and Enduring Guardians
General Power of Attorney
A Power of Attorney is a document that gives a person nominated by you the power to act on your behalf. It allows your Attorney to sign or do anything that you can legally do, subject to any conditions that you state in the Power of Attorney document. A Power of Attorney enables your affairs to be managed by the Attorney when you prefer not to conduct them personally or for example where you are ill or overseas. Powers of Attorney can be used for almost any purpose, including operating a Bank Account, paying bills or signing contracts.
To give a valid Power of Attorney you must be mentally competent and you must understand the nature and effect of the power being granted. You can revoke a Power of Attorney at any time as long as you are mentally competent. A General Power of Attorney ceases to have effect if you become mentally incompetent.
Enduing Power of Attorney
An Enduring Power of Attorney allows you to delegate the management of your affairs as is the case with a General Power of Attorney however the Attorney’s powers continue even after you become mentally incompetent to manage your own affairs.
The Enduring Power of Attorney must specifically state that you wish its validity to continue after you become of unsound mind or lose your mental capacity and it is necessary for a solicitor or other designated witness to complete a Certificate within the Power of Attorney document to the effect that he or she has explained to you the effect of the Power of Attorney and that you have understood that explanation. A General or Enduring Power of Attorney does not have to be registered unless it is proposed to use same for the purpose of selling land in which case it needs to be registered at the Land Titles Office.
An Attorney appointed under a Power of Attorney generally cannot make lifestyle decisions on your behalf. For this you need to appoint an Enduring Guardian.
An Enduring Guardian is someone you choose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself.
If you are 18 years or over and you are mentally competent you can appoint one or more people to be your Enduring Guardian.
In the appointment of your Enduring Guardian you can specify which decisions you want your Enduring Guardian to make such as where you live (e.g. Nursing Home) or what medical treatment you are or are not to receive (e.g. life support).
When making your Enduring Guardianship appointment you can discuss with your proposed Guardians or your family what decisions you want them to make before you have the document prepared and executed.
The appointment of an Enduring Guardianship takes effect only if you become unable to make your own personal or lifestyle decisions. It may be necessary for your Enduring Guardian to seek the opinion of a doctor about your capacity to make decisions before acting on your behalf and it may be necessary for your doctor to see you to assess your mental capacity.
Whilst ever you are capable of making your own decisions you can revoke the appointment of an Enduring Guardian which must be in writing.
You can also appoint a new Guardian or change the decisions which your Guardian can make. To do this you will have to execute a new form of Enduring Guardianship. An Enduring Guardianship ends on death or when the appointment of the Enduring Guardian is revoked. The appointment of the Enduring Guardianship can also end where one of the Guardians dies or becomes mentally incapacitated or if it is revoked by order of the Guardianship Tribunal.
When an appointment of Enduring Guardianship is executed it must be witnessed by a solicitor or other specified person who must also witness the acceptance of the appointment by the appointed Guardians.
An Enduring Guardianship is also automatically revoked or cancelled upon marriage unless the person appointing the Enduring Guardianship marries his or her appointed Guardian. If anyone, particularly a family member is concerned as to how an appointed Guardian is conducting your affairs they may apply to the Guardianship Tribunal for a review of the appointment which may include the revocation of the appointment and the appointment of alternate guardians.