I wish to discuss the reasons why everyone needs an Enduring Power of Attorney and the appointment of an Enduring Guardian.
“We take care of the future best by taking care of the present now”
― Jon Kabat-Zin
In my opinion after a will, the next most important documents anyone must have to ensure your assets and health are in good hands, is an enduring Power of Attorney and the appointment of an enduring guardian.
We just never know what might happen. I have had seemingly fit and healthy clients who have suffered strokes and accidents at a very young age which left them incapable to look after their affairs. One client had a stroke at 35 years and another a motor accident at 28 years. In both cases I recommended that they have these documents when I assisted them in purchasing a property. Fortunately, this advice was heeded which allowed their trusted attorney and guardian, with my assistance, to look after their affairs with minimal interruption.
The enduring power of attorney only comes into effect when you are unable to make decisions regarding your property and financial decisions. The attorney can only be invoked after you have lost mental incapacity which has been established by appropriate medical opinion. Your attorney’s powers are defined under the Powers of Attorney Act 2003 and they have a Common Law fiduciary duty to put your interests above and beyond their own, which has been vigorously upheld by the courts.
An enduring power of attorney does not cover making lifestyle decisions on your behalf. To do this you are required to appoint an enduring guardian. This allows your guardian or guardians to make lifestyle and medical decisions on your behalf after you have lost mental capacity. I always include an Advanced Care Directive which sets out your directions, wishes and values that need to be considered when making those lifestyle and medical decisions on your behalf.
I cannot emphasise the importance of having these documents. I have outlined what I consider the major issues. If you care about you and family, it is a necessity to enable them to know your wishes and to continue caring for you and your assets, in the even the unthinkable occurs. Please contact our Family Law team if you have any questions or I can assist you further.