POWER OF ATTORNEY AND ENDURING GUARDIANSHIP

Section 19 of the Powers of Attorney Act 2003 provides for the creation of an enduring Power of Attorney. AN enduring Power of Attorney will, if properly certified before it is signed, continue to be effective even if the principal loses mental capacity.

An enduring Power of Attorney is a very important document and the assistance of a solicitor should be sought both for the purposes of certification and to make sure that it is done properly.

Disputes with respect to issues of capacity, breach of authority, unjust enrichment and other issues frequently come before the Supreme Court of New South Wales emphasising the importance of the solicitor who is involved in the preparation of the Power of Attorney being in a position to deal with the issue of capacity in a responsible and effective way (see for example Lake v Crawford 2010 NSWSC 232 (31 March 2010).

Enduring Guardianship – Advance Health Directive

When a person reaches a stage of life when they take a pragmatic view of the prospect that the time will come when he/she will no longer be in a position to make medical decisions about their future care he/she may wish to execute what is commonly called a ‘Living Will’ but it is really properly called an Enduring Guardianship or an Advance Health Directive, the existence of which enables the person to whom it is given to make decisions about the medical care, hospital and nursing home care of a person who by reason of his/her medical condition, for example, persistent vegetative state or dementia is unable to make rational decisions about his/her own care.

The existence of an Enduring Guardianship can save close relatives the trouble of having to make an application to the Guardianship Board where questions of medical care arise.

Stern Law is happy to prepare: