Enduring Power of Attorney, Enduring Power of Guardianship & Advanced Health Directive

Written by admin

February 27, 2020

You may be faced with a time in your life where you are unable to make financial- and health-related decisions. This could be as a result of an illness or an accident.

To sign an Enduring Power of Attorney, Enduring Power of Guardianship or Advance Health Directive reflecting your wishes, you must have full legal capacity.  You are deemed to have full legal capacity when you are 18 years of age or over, you are able to make a formal agreement, and you have mental ability to make decisions for yourself.

This will allow someone you trust to make decisions on your behalf.

Enduring Power of Attorney (EPA)

Where you are an adult and you have legal capacity, you will sign a legal document that enables you to appoint a person or agency of your choice as your attorney.

Your attorney can make property and financial decisions on your behalf, but cannot make personal, lifestyle or treatment decisions on your behalf.

Your EPA is entirely separate from your Will and you can make an Immediate Enduring Power of Attorney or a Dormant Enduring Power of Attorney:

Immediate Enduring Power of Attorney
It is effective immediately and continues to be effective during any period in which the appointer does not have legal capacity.

Dormant Enduring Power of Attorney
Effective only during any period when a declaration by the State Administrative Tribunal is made that the person/appointer does not have legal capacity.

You can appoint an attorney solely, or you can appoint more than one attorney to act jointly or jointly and severally. Where the attorneys act jointly, both attorneys must act together and must agree on all decisions that are made. Where the attorneys act jointly and severally, it means that two attorneys can make decisions independently or together.

You may also appoint substitute attorneys who would take over the responsibilities of an attorney in the event that one or more of your attorneys are unable to continue in the role as attorney.

Enduring Power of Guardianship (EPG)

Where you are an adult person and you have legal capacity, you can sign a legal document that authorises a person of your choice to make important personal, lifestyle and treatment decisions on your behalf should you ever become incapable of making such decisions yourself.

Your Enduring Guardian could be authorised to make decisions about where you live, the support services you have access to, and the treatment you receive.

Your Enduring Guardian must be 18 years or older and must have full legal capacity.  You can appoint more than one Enduring Guardian to act jointly, and they must reach agreement on any decisions they make on your behalf.

You may also appoint substitute Enduring Guardians who would take over decision making responsibilities in the event that one or more of your primary Enduring Guardians is unable to continue in the role as Enduring Guardian.

You may restrict the decision-making authority of your enduring guardian to makes decisions about medical treatment you receive, but not about where you live.

Advanced Health Directive (AHD)

If you are 18 years and over with full legal capacity, you are able to make a directive which sets out treatment decisions in relation to your future medical treatment.

You can consent to certain future treatment, or refuse consent for certain future treatment.

“Treatment” includes medical and surgical treatment (including life sustaining measures and palliative care), dental treatment, and other health care.

The Advanced Health Directive overrides the Enduring Power of Guardianship on these issues.

If you would like assistance with preparation of these documents or if you have any queries, please contact MP Commercial Lawyers

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