Power of attorney and enduring guardianship are different legal documents designed to take effect if you are sick, absent or become incapacitated and are unable to make certain decisions for yourself.
While a power of attorney is generally considered to be a device by which you empower a chosen ‘attorney’ (a person you grant authority to) to make financial and legal decisions on your behalf, an enduring guardianship specifically empowers your nominated ‘guardian’ to make lifestyle, health and welfare decisions for you, such as deciding where you live or what medical treatment you should receive if you are unable to make these decisions yourself. In Queensland, however, it should be noted that an enduring power of attorney can be nominated to do both of these things.
In the simplest terms, both are legal documents that empower someone you trust to conduct your affairs on your behalf should you not be able to.
The power of attorney
There are a number of different types of powers of attorney, as well as differences in the meaning of the term between each state and territory in Australia.
In Queensland, a power of attorney is governed by the Powers of Attorney Act 1998 (the Act). The Act sets out two types of power of attorney: General power of attorney under Chapter 2 of the Act; and enduring power of attorney under Chapter 3 of the Act.
General power of attorney is a legal document that gives your attorney the authority to make decisions about financial and legal matters on your behalf. This power lasts only for as long as you, as the person who appoints them, has ‘capacity’ — the general power ceases to operate should you lose capacity to make decisions. This type of power is often used for short-term purposes and as a means of convenience, for instance when you need someone to look after your financial and legal affairs in Australia while you’re travelling overseas.
A general power of attorney can be revoked by you, as the principal, by deregistering a registered power of attorney; when you die; or if the attorney resigns, has impaired capacity or becomes bankrupt or insolvent.
An ‘enduring’ power of attorney most significantly differs from the general power in that the powers continue should you, as the principal, lose capacity to make your own decisions. Essentially, you appoint your attorney while you have capacity in order to make important decisions for you if you later lose that capacity.
Under the Act in Queensland, an enduring power of attorney must:
- Be at least 18 years old;
- not be a paid carer or a health provider for the principal;
- not be a service provider for residential services where the principal is a resident; and
- if the person would be given power for a financial matter, not be bankrupt or taking advantage of the laws of bankruptcy as a debtor.
An attorney can also be the public trustee (if you have no-one else you trust) or a trustee company.
In Queensland, an enduring power of attorney can also be used to authorise medical and health decisions, also known as an advance health directive (AHD). An AHD would take effect if your capacity becomes impaired, and works as if you had personally given the direction or had capacity to make the decision.
The AHD could include directions to the attorney(s) consenting to your future health care, including matters as serious as whether a life sustaining measure is to be withheld or withdrawn.
Enduring power of guardianship
This power involves appointing a guardian to make certain personal and health care decisions on your behalf when your decision-making capacity becomes impaired.
Family members, close friends, professionals or anyone who has a genuine and continuing interest in the welfare of an adult with impaired decision-making capacity can apply for a guardian to be appointed. Adults with impaired decision-making capacity can also apply on their own behalf. If you have no-one who fits the description above, a public guardian may be appointed for you.
Your guardian must be over 18 years of age and should be someone you trust implicitly. It could be for example, your spouse, children or significant person in your life.
In Queensland this power is covered under the Guardianship and Administration Act 2000. Under this Act, guardians cannot make decisions on:
- Financial or property matters, unless they have also been appointed as your attorney for financial matters under an enduring power of attorney described above.
- Special health care matters, including sterilisation or tissue donation.
- Special personal matters including making or revoking a will, consenting to marriage or relinquishing a child for adoption.
Generally, guardians can be given the authority to make decisions for an impaired adult such as:
- where they live;
- what support services they receive;
- with whom they have contact or visits;
- general health care matters;
- the approval of containment and seclusion in certain limited circumstances;
- the approval of chemical, physical or mechanical restraint;
- restricting access to objects;
- other day-to-day issues.
Guardians are appointed by the Queensland Civil and Administrative Tribunal and can take the form of a single guardian to make decisions on all, or only, specified personal or health care matters; two or more guardians to make decisions together or to make decisions separately on specifically nominated matters on your behalf.
You can revoke your appointment of a guardian at any time by putting this decision in writing and making sure a copy is given to your guardian.
Questions around power of attorney and guardianship are often clarified by speaking with a legal professional experienced in the area of estate planning. Contact our Gold Coast Lawyers today for information or advice on any of the issues raised in this article.