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  7. FAQ: Enduring Power of Guardianship & Enduring Power of Attorney
4 Feb 2020

HHG Legal Group’s Will & Estates lawyers Lucy Ferriera and Maria Zappala answer frequently asked questions regarding an enduring power of guardianship (EPG) and an enduring power of attorney (EPA).

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What is an enduring power of guardianship?

An Enduring Power of Guardianship (EPG) is a legal document. It allows you (appointor) to choose a person (guardian) to make significant personal, lifestyle and medical treatment decisions on your behalf. An EPG will be effective if you no longer have the mental capacity to make these kinds of decisions for yourself.

Who can execute an EPG?

You can execute an EPG if you are over 18 years old and have full legal capacity.

You can appoint any person over the age of 18 who has full mental capacity to be your enduring guardian.

Who should I appoint as my guardian?

Unlike an EPA, you can appoint more than two Enduring Guardians or substitute Enduring Guardians. However, like when appointing an Attorney, you should only appoint a person or persons that you trust will make decisions in your best interests.

Can I revoke my EPG?

You may only revoke your EPG while you have legal capacity. In order to do so, you need to inform your guardian/s and any relevant authorities of your decision.

Why should I execute an EPG?

Just like executing an EPA, executing an EPG provides you with the choice of who you wish to appoint. This allows you to appoint a person that you have discussed your wishes with beforehand and will therefore act in your best interests.

Having a guardian appointed that knows this information is crucial due to several reasons. One being that it reduces the stress and issues caused by the following common situation:

A parent loses their mental capacity and has multiple children. There is no EPG in place and decisions need to be made regarding their lifestyle or medical treatment and each child has a different view of what is in their parent’s best interests. This may cause conflict between your children as your wishes are not known. Therefore, what is already a difficult time for the family can be made worse through not having the proper documents in place.

What is an enduring power of attorney?

An enduring power of attorney (EPA) is a legal agreement. An EPA enables you, (the donor) to appoint a person (your attorney) to make decisions concerning your property and finances on your behalf. Your attorney has the power to do anything you can lawfully do regarding your property and finance. For example, they can manage your bank account or dispose of your assets.

An EPA allows your attorney to make these kinds of decisions if you are physically and/or mentally unable to and remains in place even if you lose your decision-making capacity.

Who can execute an EPA?

You can execute an EPA if you are over 18 years old and have full legal capacity. Full legal capacity means you can understand the nature and consequences of your EPA and the nature and extent of your estate.

Who should I appoint as my attorney?

You can appoint anyone who is over 18 years old who has full legal capacity to be your attorney. For example, you may choose to appoint your spouse or child. You may choose to appoint two attorneys who can work together to make decisions on your behalf.

You also have the option to appoint up to two substitute attorneys if your first choices become unwilling or unable to act.

Appointing someone to make property and financial decisions on your behalf is a very significant decision. Therefore, you should only appoint a person or persons that you trust will make decisions in your best interests.

Can I revoke my EPA?

You may revoke (cancel) your EPA while you have full legal capacity. If this has been lost, an application must be made to State Administrative Tribunal on your behalf. The Tribunal will decide if your EPA is to be revoked.

Why should I execute an EPA?

There are many ways you can become physically unable to see to your property and finances or lose your decision-making capacity. For example, both scenarios can arise through old age or through an accident and you cannot predict when or if they may occur. If either scenario occurs and you have an EPA in place, you can be assured that your attorney will make decisions with your best interests in mind.

Furthermore, if you lose your decision-making capacity and you do not have an EPA in place, a person (usually a family member or friend) can apply to the State Administrative Tribunal for an administration order under the Guardianship and Administration Act 1990. If that person (administrator) is appointed under an order, their position will be the same as an attorney. However, it will be the Tribunal’s choice of who to appoint – not yours. If there is not a suitable person in your life to be appointed, the Public Trustee may be appointed an Enduring Guardian as a last resort.  While this can be beneficial, it also means that a stranger will be dealing with your property and finances.

Should I execute both an EPA and an EPG?

You are not required to execute an EPA, an EPG or one of each. However, executing both ensures decision making is protected in all areas of your life. If you would like to have these documents prepared, please contact us and let our experienced team of Wills and Estates Lawyers assist you.

To find out more, contact us here

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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