In the previous column we talked about General Power of Attorney, which is cancelled if you suffer a loss of capacity.
The second type is an Enduring Power of Attorney, which is far more common and operates even after you lose your capacity.
If you have not appointed an Attorney and in the event of a dispute, your affairs are frozen and it will be necessary for someone to apply to the NSW Civil and Administrative Tribunal for a Financial Management Order.
This means that all or part of your financial affairs will be subject to management under the NSW Trustee and Guardian Act, so it is well worth considering appointing a trusted family member or friend to this role.
We also recommend you give consideration to Enduring Guardianship - appointing a person to be your guardian in the event that you are incapable of managing your personal affairs. This guardian can make certain lifestyle decisions for you but only when you become incapable of making those decisions for yourself.
As people live longer dementia and Alzheimer’s become factors, so it is important to plan for the situation where we may not be able to make decisions about our health care and other lifestyle issues.
An Enduring Guardian who understands your wishes can avoid family disagreements about appropriate treatment.
For example, conflict may arise as to what medical treatments you should receive. Without an Enduring Guardian, your family may be forced seek appropriate orders from the NSW Civil and Administrative Tribunal. Obviously this should be avoided if possible.
Under the Guardianship Act an Enduring Guardian can decide where you live and what healthcare and other personal services you receive, including making decisions in the terminal phase of an incurable disease or if you should be in a permanent coma or a persistent vegetative state.
For example you could direct your Enduring Guardian to refuse medical treatment on your behalf even if that refusal of treatment will lead to your death.
The appointment of an Enduring Guardian requires the preparation of a legal document by your lawyer. It must be signed by you and the people you are appointing as your Enduring Guardian(s), with their signatures witnessed by a lawyer or Clerk of the Court.