Wills, Powers of Attorney & Guardianship



Wills and Estate law is a very complex area to navigate, with legislation varying greatly between the states of Australia. For many people, creating a Will is something they do not give priority to. However the fact remains that everyone, whether you are 18 or 80, should have a current and legally binding Will, a document that stipulates how you wish your assets be distributed in the event of your death.

At Cluff & Associates, we understand the technical and legislative requirements of Wills, Probates and Estates. We aim to provide information in a easy to understand manner whilst remaining approachable and sympathetic to this difficult and often uncomfortable topic. Gary will sit with you to discuss in detail your assets, taking into consideration your personal family situation. We are then able to advise you in the best way to distribute your assets after your death, to minimise costs and tax implications for your beneficiaries and also to ensure the potential to make a claim against your estate is minimised.

Power of Attorney

What is it?

A Power of Attorney is a legal document which appoints one person (the attorney) to act on behalf of another (the donor) in areas of property and financial management.

An attorney in this sense does not necessarily mean a lawyer or solicitor. The attorney is usually a family member or close friend. A Power of Attorney does not enable a person to make medical or lifestyle decisions on behalf of another. The person to make these decisions is an Enduring Guardian appointed in a separate document.

What is an Enduring Power of Attorney?
You can make either an ordinary Power of Attorney or an Enduring Power of Attorney. The difference is that an ordinary Power of Attorney ceases to have effect when a person loses mental capacity but an Enduring Power of Attorney continues in force after that time.

Why make an Enduring Power of Attorney?

Anyone can develop conditions like dementia or alzheimers or suffer a stroke or be injured in a car accident so that they are unable to manager their financial affairs and property

Making an Enduring Power of Attorney is a practical step you can take while you still have legal and mental capacity. It means that essential financial matters will be attended to by someone on your behalf.

Who can make a Power of Attorney?
Any capable adult can appoint a Power of Attorney. If a person has a mild intellectual disability or is in the early stages of dementia, they may still be able to make a Power of Attorney. This will depend on their understanding of the nature and effect of the document. If their capacity is in doubt, then assessment of the person’s understanding should be made be a medical practitioner.

If I make a Power of Attorney do I lose my rights?

No. As long as you retain mental capacity you still have authority to deal with your property and money just as you did beforehand. Also, you can state in the Power of Attorney document that it is not to come into effect unless you become of unsound mind or are incapable of making your own decisions. Your attorney can be required to obtain a doctor’s certificate which says this.

What happens if I don’t make an Enduring Power of Attorney?

You can only appoint a Power of Attorney while you are of sound mind. It is too late if you become of unsound mind or become incapacitated for some reason.

If you become of unsound mind and have not made an Enduring Power of Attorney then you lose the ability to appoint someone to manage your property and finances. Someone will need to apply to the Guardianship Board or the Supreme Court to have a manager appointed. This means a government official located in Sydney could be making decisions on your behalf. Regular fees are charged for this service.

A caring friend and/or relative holding your Power of Attorney is usually a much cheaper and better alternative.
Make an Enduring Power of Attorney while you are in good health. Do not leave it until it’s too late.

Who should I appoint as my attorney?

Your attorney will be able to do anything you legally could do. You need to choose a person who is trustworthy and responsible enough to manage your property and finances. Sometimes it is best to appoint more than one attorney.
Before you appoint someone you should be sure that he or she will in fact do all the things that you want. Your attorney is legally bound to carry out the written instructions in the document.

If you attorney acts dishonestly or improperly, it may be possible to have the Court intervene to protect your interests. Dishonesty or impropriety can be hard to prove so be careful about choosing your attorney. Also, if the attorney has acted dishonesty and spent your money, the Court may not be able to make an order to recover it.

You can appoint more than one attorney if you want and this is often a good idea. You should choose people who are able to coordinate with each other. You will need to decide whether you want your attorneys to act jointly (together) or severally (individually).

What powers can I give my attorney?

A Power of Attorney can be completely general in the powers and authority that it gives to the attorney. This is what most people choose to do.

You can limit the power as you like. You may want to limit the attorney to do something specific such as paying bills or selling your house.

You could limit the time over which the power will operate by, say, granting it for a year only.

How long will my Power of Attorney last?

An ordinary Power of Attorney ceases to operate when you lose your mental capacity but an Enduring Power of Attorney continues until you die.

Any Power of Attorney automatically ceases to operate if your attorney notifies you that he will no longer act under the Power or when you notify your attorney that the power has ceased. It also ceases if you become bankrupt or die.

The Supreme Court can also revoke a Power of Attorney if, for example, someone proves that the attorney is acting dishonestly. Also if either the Supreme Court or the Guardianship Board appoints a manager under the Protected Estates Act, the operation of the Power of Attorney is suspended. This could happen if it can be shown the attorney is unsuitable or if it is in your best interests for a management order to be made.

Can I change my mind?

You can cancel your Power of Attorney at any time as long as you are of sound mind. You must make sure that your attorney knows that you are cancelling the Power of Attorney.

How do I give a Power of Attorney?

You should contact our office to provide the necessary instructions. If you have assets in the states/territories other than NSW you should let us know as each state has its own particular requirements.

Should everyone have a Power of Attorney?

Anyone who has any risk of suffering a disability, injury or illness should seriously consider it. In other words everyone! Once you pass the age of 40, you are in a higher risk age bracket for strokes, heart attacks, etc. These typically occur without warning.

Enduring Guardianship

What is it?

Appointment of an Enduring Guardian is a legal document in which you appoint a person to make personal lifestyle decisions on your behalf when you are not capable of doing this yourself.

What type of decisions will my Guardian make?

Usually your Enduring Guardian will make a decision as to where you will live, for example, in a hostel or nursing home, what health care you will receive, who will be your treating doctor, what other personal services you may receive e.g. home nursing support, what type of medical treatments you will receive.

Why appoint an Enduring Guardian?

Obviously as a matter of preference we would like to decide certain issues for ourselves. E.g. where we live, which doctor we go to, what medical treatment we receive and what other lifestyle services we receive. Sometimes it is not possible for us to make these decisions. We can become sick, be injured in an accident, suffer a stroke or have a condition which makes it impossible for us to make informed decisions on our own behalf.

Why do I need it now?

Many people think that if they are ill or injured, then the appointment of an Enduring Guardian can take place at that time. Unfortunately, that is not possible. If you have already lost the capacity to make decisions about your own welfare and medical treatment, you have also lost the legal capacity to make decisions to appoint an Enduring Guardian.

What happens if I do not appoint an Enduring Guardian?

If you do not appoint a Guardian then if the circumstances arise where one is needed it could be necessary for someone to make an application under the Guardianship Act to be appointed your Guardian. The Guardianship Tribunal might agree to this appointment or alternatively, might the Protective Commissioner (a Government Official) to act as your Guardian. The application to the Guardianship Tribunal is more complicated and potentially more costly for you than making your own appointment now. The Protective Commissioner will charge a fee for administrating your affairs.

What Can’t an Enduring Guardian do?

An Enduring Guardian cannot make a Will for you, vote on your behalf, consent to marriage, manage your finances, transfer your property, or override your objections to medical treatment.

Who should I appoint?

The person you appoint must be over 18 years of age, should be someone who you trust and someone who will have an interest in making decisions in your best interest, when you are not capable of making decisions yourself. Your Enduring Guardian must act within the law, and within the principals of the Guardianship Act. Your Enduring Guardian cannot be a person providing treatment or care to you at the time of the appointment.

How do I appoint an Enduring Guardian?

The form for appointing an Enduring Guardian can be drawn by this office. The Guardianship Act prescribes certain specific information that must be contained within the form for it to be valid. Additional information can be inserted e.g. you can choose what decisions you want your Enduring Guardian to make and give directions to your Enduring Guardian as to how you wish them to perform the functions they are entitled to do under the appointment.

When does the appointment of a Guardian take effect?

The appointment of a Guardianship only takes effect when you are unable to make your own personal or lifestyle decisions. It will be up to your Enduring Guardian to consult with a medical practitioner about your capacity to make decisions before taking any steps on your behalf.

At the appropriate time your Enduring Guardian would approach your doctor for a certificate under the Guardianship Act to the effect that you are totally or partially incapable of managing your person. The certificate along with a copy of the appointment would provide evidence to others of the fact that a Guardian is then entitles to make decisions on your behalf.

How long does an Enduring Guardianship continue?

The appointment of an Enduring Guardianship commences when you lose your capacity and continues until you die or the appointment is revoked.

Should everyone consider having a Guardian?

Anyone who has any risk of suffering a disability, injury or illness should seriously consider appointing a Guardian. Once you pass the age of 40 years you are in a higher risk age bracket for stokes, heart attacks etc. These often occur without warning. The existence at the time of an “Appointment of an Enduring Guardian” will make the day to day management of your lifestyle and care a lot easier for your family.

Is an Enduring Guardian different to a Power of Attorney?

A Power of Attorney is someone who manages your financial affairs, property and assets. The Enduring Guardian is the person who manages your medical and personal issues. Most of us should consider appointing both.

What to do next?

Proper legal advice is essential to understand the issues involved in preparing Wills, Power of Attorney and Guardianship and to give effect to your wishes. For guidance and support regarding your will and personal wishes, please call Cluff & Associates today.


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