Administering someone’s legal and financial affairs when they cannot look after them themselves can be a challenging undertaking. Understanding the distinct roles of Enduring Guardianship and Power of Attorney is critical. These legal processes ensure a person’s affairs are managed according to their wishes in the event they are no longer able to make decisions for themselves. This guide aims clarifies the differences between Enduring Guardianship and Power of Attorney, helping you make informed decisions.
When is Enduring Guardianship or Power of Attorney Required?
Enduring Guardianship and Power of Attorney are used for different circumstances. Broadly speaking, the differences between them are as follows:
- Enduring Guardianship is necessary when an individual cannot make personal or lifestyle decisions due to illness or incapacity. It covers health care, living arrangements and other personal matters.
- Power of Attorney, grants someone the authority to handle the financial and legal affairs if they cannot make these decisions. This can include managing your bank accounts, assets and paying bills.
In Australia, there are state-based differences between these two processes. For example, in Queensland an Advance Health directive is available, covering medical and legal decisions. We’ve listed some state-based links below so you can be sure you’re up to date, but it’s always best to check with an estate lawyer if you have more detailed questions.
Life Moments for Creating These Documents
- Health Concerns If you have been diagnosed with a serious illness
- Aging Parents When your parents are entering their later years
- Travel If you plan to travel extensively and need someone to manage your affairs
- Estate Planning To ensure your wishes are followed in case of sudden incapacity
What is the Enduring Guardianship or Power of Attorney Process?
Creating an Enduring Guardianship or Power of Attorney involves several steps:
Choose Your Guardian or Attorney
- Select someone you trust completely. This person can be the same for both roles or different individuals
- Ensure they understand and accept the responsibilities
Complete the Necessary Forms
- Obtain the appropriate forms from your state or territory’s legal services
- Fill out the forms accurately, detailing the powers you wish to grant
Sign and Witness the Documents
- Both you and your chosen guardian or attorney must sign the documents
- Ensure signatures are witnessed by an eligible individual, typically a legal professional or a Justice of the Peace
Register the Documents (if required)
- Some states require the registration of these documents with a relevant authority
How Long Does Enduring Guardianship Take?
The timeline for setting up Enduring Guardianship or Power of Attorney varies:
- Document Preparation Typically takes a few days to weeks, depending on the complexity
- Signing and Witnessing This can usually be done within a day, assuming everyone is available
- Registration (if required) This can take several weeks, depending on the state’s processing times
Factors influencing the duration include the complexity of your estate, the availability of witnesses, and state-specific regulations.
Do You Need an Estate Lawyer?
While it’s possible to complete the process without legal assistance, hiring an estate lawyer can be beneficial, especially in complex situations or if disputes are likely among beneficiaries. An estate lawyer can:
- Provide legal advice tailored to your situation
- Ensure all documents comply with Australian law
- Assist in resolving conflicts that may arise during the process
For personalised assistance, please send an email to enquiries@billwill.com.au and we can put you in touch with one of our estate planning partners.
Common Issues
Common issues in the Enduring Guardianship & Power of Attorney process include disputes among potential beneficiaries, delays in obtaining finalising the documentation and unexpected financial issues. Here are steps to avoid these issues:
- Clear Communication Ensure all involved parties understand your wishes
- Detailed Documentation Provide clear and detailed instructions in your documents
- Professional Advice Seek advice from legal professionals to avoid mistakes
- Regular Reviews Periodically review and update your documents to reflect any changes in your circumstances or wishes
Conclusion
Understanding the differences between Enduring Guardianship and Power of Attorney is essential for effective estate planning. These legal tools ensure your personal and financial affairs are managed according to your wishes if you become incapacitated. Following this guide and using the provided checklist can help you navigate the process smoothly. If you need further assistance, consider seeking professional advice to ensure all aspects are covered.
For more information, refer to these government sources:
Victoria
New South Wales
Australian Capital Territory
Queensland
South Australia
Northern Territory
Western Australia
