Appointment of Enduring Guardian NSW
"Who is who" in these FALQs
The person making the appointment under a Power of Attorney document is referred to as either the "principal" or the "appointor" — depending on the document and the jurisdiction in which the appointment is made.
Similarly, the person being appointed is referred to as either the "guardian" or "attorney".
For the purposes of these frequently asked legal questions, we use the word:
- "appointor" to refer to the person making the appointment; and
- "attorney" for the person being appointed.
What things are attorneys not permitted to do during their appointment period?
There are a number of things that an attorney in Australia is not permitted to do during their appointment period — for example, they:
- may not exercise any trusts, powers or discretions vested in the appointor;
- may not perform any non-delegable duties of the appointor (such as the role of company director — see Question below;
- may not make a Will for the appointor;
- may not swear an affidavit in the name of the appointor; and
- may not pass on their powers or duties to another person.
Also as you can read here, there is doubt about whether an attorney can make or renew a binding death benefit nomination under an SMSF.
Can a director of a company appoint an attorney under a Power of Attorney to act in that role on their behalf?
No, a director anywhere in Australia is not able to appoint an attorney to act on their behalf as a company director.
However, this question is often confused with a company's ability to appoint an attorney to act on behalf of a company, which is allowed and provided for under many company constitutions.
Can an attorney make or renew a binding death benefit nomination under an SMSF?
Possibly. The law around this issue is unclear throughout Australia.
The Superannuation Complaints Tribunal has held that it is possible for an attorney to make a binding death benefit nomination on behalf of an appointor.
Although there are no laws expressly prohibiting the attorney from making such a nomination, many legal practitioners advise against doing so because of the associated risks. If an attorney makes a binding death benefit nomination in favour of a certain person or persons on behalf of the appointor, then the attorney may find themselves subject to a claim by a family member or other person interested in the appointor's affairs who may disagree with the nomination.
Because of these risks, many practitioners are of the view that it is a decision which — as with the execution of a Will and the role of a company director — is so personal in nature that it should only be executed by the appointor themselves.
Should I consult my health professional when making an Appointment of Enduring Guardian or Advance Health Directive?
It is a good idea to consult your health professional when making an Appointment of Enduring Guardian about your future medical treatment or an Advance Health Directive. Your health professional can help by clarifying medical terms, and giving you information about various medical conditions and the advantages and disadvantages of various treatments.
If you choose to use your health professional as a witness to you signing your Appointment of Enduring Guardian or Advance Health Directive, then they may also be able to give evidence (if needed) about your competence at the time you made the document.
What happens if an attorney dies or becomes mentally incapacitated during their period of appointment?
In New South Wales, if an attorney dies or becomes mentally incapacitated during their period of appointment, then their appointment is automatically revoked and will no longer have effect.
If that happens and an alternative attorney:
- has been appointed under the Power of Attorney document, then the alternative attorney will act in place of the first appointed attorney; or
- has not been appointed under the Power of Attorney document, then the role of attorney is vacated and the appointor is left without an attorney. Maddocks recommends that appointors appoint alternative attorneys to guard against this occurrence.
What is the maximum number of attorneys an appointor can appoint at one time using Cleardocs?
You can use Cleardocs to arrange for an appointor in New South Wales to appoint:
- under the General Power of Attorney and Enduring Power of Attorney, up to 3 attorneys acting jointly, or jointly and severally, and 1 alternative attorney; and
- under the Appointment of Enduring Guardian, 1 attorney and 1 alternative attorney.
For the Advance Health Directive, you can use Cleardocs to appoint 1 'responsible person' and 1 substitute 'responsible person' to make decisions in consultation with your treating clinician.
Does revoking one attorney's power also revoke the power of any remaining attorneys?
No, revoking one attorney's power does not necessarily revoke the power of any remaning attorneys.
If an appointor has multiple attorneys who act jointly, then the Cleardocs system allows the appointor to choose whether or not they want the appointment of remaining attorneys to be automatically terminated or not in the event of the death, resignation or vacation of office of one attorney.
If an appointor has multiple attorneys who act jointly and severally, then the revocation of the power of one attorney does not, by definition, affect the powers of any remaining attorneys.
The Cleardocs system allows multiple attorneys for the General Power of Attorney and Enduring Power of Attorney in New South Wales. So, this question is relevant only for those documents.
If my spouse is my attorney and we get divorced, then is the Power of Attorney arrangement automatically ended?
No, if an appointor in New South Wales has their spouse as their attorney and they get divorced, then the Power of Attorney remains in place.
Therefore, when people get separated or divorced, Maddocks recommends that they review and update their Powers of Attorney and estate planning arrangements.
When are attorney appointments automatically revoked?
All Power of Attorney documents in New South Wales are revoked:
- if the attorney becomes bankrupt;
- if the attorney becomes insolvent;
- if the attorney dies or becomes incapacitated; or
- if the appointor dies.
Also, in New South Wales, Appointments of Enduring Guardian are revoked if the appointor marries anyone other than the appointed attorney.
However, in New South Wales, a later appointment of an attorney does not automatically revoke an earlier appointment of an attorney of the same type.
Can the person I appoint under my Appointment of Enduring Guardian make an Advance Health Directive on my behalf?
No, in New South Wales, no other person is able to make an Advance Health Directive for you.
What happens if I make an Appointment of Enduring Guardian as well as an Advance Health Directive?
In New South Wales, a person can make both an Appointment of Enduring Guardian as well as an Advance Health Directive, which may deal with similar matters but appoint different people to make decisions on their behalf. If that happens and medical circumstances arise which:
- are specifically addressed by the Advance Health Directive, then the person appointed under the Appointment of Enduring Guardian will be bound by the decisions made pursuant to the Advance Health Directive; or
- are not specifically addressed by the Advance Health Directive , then the person appointed under the Appointment of Enduring Guardian has the duty to consent, or refuse consent, to medical treatment based on the person's perceived best interests.
What happens if my family or decision-makers disagree with my wishes under my Power of Attorney document or my Advance Health Directive?
Generally, any specific wishes you have made in your Power of Attorney document or in your Advance Health Directive will take priority over the wishes of anyone else — including your family and your appointed decision-makers.
Maddocks recommends that you discuss your wishes with your family members and close friends as appropriate. By doing so you will give them an understanding of your wishes and the reasoning behind them. Usually, this helps make it more likely that they will support your wishes if your Power of Attorney or Advance Health Directive needs to be followed.
How do I make sure that my Power of Attorney or my Advance Health Directive is followed?
The people required to implement your Power of Attorney document or your Advance Health Directive may, at the time, be concerned that your wishes are not properly set out in the document — for example, they may think that:
- the document is out of date; or
- that you did not have full mental capacity at the time you made the Power of Attorney or Advance Health Directive.
When the situation relates to medical treatment, the medical practitioner treating you may ask your family members or close friends to provide information to address those concerns. In these situations, there is always a risk that your wishes may not be fulfilled — particularly if your wishes conflict with what the medical practitioner, or those close to you, perceive to be in your best interests. The risk is most likely to occur in an emergency because, in an emergency, the medical practitioner is able to treat you in the way they perceive to be in your best interests — they can do that regardless of what you have set out in your Appointment of Enduring Guardian or Advance Health Directive.
Due to these risks, Maddocks recommends that:
- you regularly review your Advance Health Directive and all Power of Attorney documents to ensure that they are up to date — particularly if your health changes significantly;
- you make your wishes known to your family and closest friends;
- you provide a copy of your Advance Health Directive and all Power of Attorney documents (and any updated versions and revocations) to:
- your attorney;
- your health professional;
- a family member or close friend;
- your solicitor, if you wish;
- your bank, if you wish (in relation to your Power of Attorney); and
- in relation to your Appointment of Enduring Guardian or Advance Health Directive, you ask a family member or close friend to arrange:
- a copy of the documents to be given to your hospital or residential aged care facility; and
- for the documents' existence to be noted on your admission form if you are admitted for treatment.
Can I revoke my Advance Health Directive?
Yes, you can revoke an Advance Health Directive at any time. To do so, you should:
- revoke it in writing;
- destroy your old directive; and
- give a copy of your new directive to anyone to whom you provided a copy of your previous directive.
Can I request euthanasia in my Advance Health Directive?
No, it is illegal to accelerate the death of another person or to assist another person to commit suicide.
What are the requirements for witnessing the signing of the Power of Attorney (NSW) documents?
|Document||Number of witnesses||Requirements of witness||Restriction on witness|
|Appointment of Enduring Guardian||1 adult.||
Must be an 'eligible' witness as prescribed by section 5 of the Guardianship Act 1987 (NSW).
For example, an Australian legal practitioner or a registrar of the Local Court.
|The eligible witness must be unrelated to:
|Power of Attorney (Financial)||1 adult.||
Must be a 'prescribed' witness under section 19 of the Powers of Attorney Act 2003 (NSW).
For example, an Australian legal practitioner or a registrar of the Local Court.
| The prescribed witness must be unrelated to:
|Advance Health Directive||2 adults.||At least 1 adult witness must be unrelated to the person making the directive.|