Planning for the forseeable: Why appoint an Attorney & Guardian?

What if I suffer a serious injury, illness or trauma?

Fundamental to every Modern Estate Plan is considering what will happen to you and your loved ones in the event that you suffered from a serious injury, illness or trauma during your lifetime. This involves:

  • the appointment of trusted persons to act as your attorney or guardian to make important decisions on your behalf if/when you are unable to make your own decisions, and
  • the assessment of your financial circumstances by a Financial Planner and the taking out or reviewing of appropriate personal insurances.

Unfortunately, unexpected accidents and illnesses affect people of all ages every day. Solicitors, Financial Planners and Insurances Brokers will have ample stories of tragic and unforeseeable events affecting families. Sticking your head in the sand or saying ‘this will never happen to me’ is one option, however, it will not have been the best option for you or your loved ones if something were to happen to you.

Both Powers of Attorney and Appointments of Enduring Guardian are useful and wise means of planning for your future. In the absence of a valid Power of Attorney and/or Appointment of Enduring Guardian:

  • your loved ones will be required to obtain guardianship and/or financial management orders from the Guardianship Tribunal to properly care for you in the event that you are unable to make decisions on your own, and
  • the person(s) that end up with authority to make decisions on your behalf may not be the person(s), or may not have the scope of authority, you intended.

Whilst everyone should have a duly appointed attorney and guardian not everyone needs to maintain all or any personal insurances. Whether or not personal insurances are required usually depends on your existing financial resources and ability to access sufficient funds such that insurance are not required. These issues should be discussed with a Financial Planner.

Enduring Powers of Attorney

A Power of Attorney is a document pursuant to which you appoint a person(s) to manage your financial affairs, usually in circumstances where you are unable to manage your affairs yourself (for example, due to illness, unsoundness of mind or time overseas). An Enduring Power of Attorney is a Power of Attorney that only commences or continues to operate after you are unable to make decisions for yourself.

An attorney must always act in the best interests of the principal. Unless the attorney is expressly authorised, the attorney cannot gain a benefit from being an attorney.

What if I suffer a serious injury, illness or trauma?

An Appointment of Enduring Guardian is a document pursuant to which you appoint a person(s) to make health and lifestyle decisions on your behalf when/if you are no longer able to make those decisions yourself due to illness or unsoundness of mind. Unless the guardian’s authority is restricted, a guardian may:

  1. decide where you live,
  2. to decide what health care you receive,
  3. consent to the carrying out of prescribed medical or dental treatments on you, and
  4. decide what other kinds of personal services you receive.

By Anna Roberts

Director, Solicitor & Family Dispute Resolution Practitioner