What are they?

An Enduring Power of Attorney is a legal document that gives someone else the power to make decisions for you and act on your behalf with respect to financial matters.

An Enduring Power of Guardianship covers personal matters (including your living arrangements) and medical matters in circumstances when you lose capacity to make decisions for yourself.

An Advanced Health Directive allows an individual to plan their future medical care according to their beliefs, values and preferences.

What is capacity?

Capacity is a legal term for understanding the main consequences of a decision, being able to take responsibility for making a choice and being able to make a choice based on the risks and benefits.

Children under the age of 18 do not have the legal capacity to make decisions. Some people are declared unable to make decisions as regulated by the Guardianship and Administration Act 1990.

In summary

Appointment Type Enduring Power of Attorney (“EPA”) Enduring Power of Guardianship (“EPG”) Advanced Health Directive (“AHD”)
What decisions can my Attorney or Guardian make?
  • Financial
  • Purchase and sell properties control your investments and assets;
  • Collect your income;
  • Operate your bank accounts;
  • Organise your income tax or pension requirements; and
  • Generally manage your assets and legal affairs.
A Guardian will have the same powers as if he or she were your parent and you were the child, including but not limited to:

  • Decisions on where to live;
  • Healthcare decisions;
  • Decisions about personal services; and
  • Decisions about who you associate with.
  • Consent or withhold consent to medical or dental treatment; and
  • End of life decisions.
What decisions can’t my Attorney or Guardian make?
  • Vote;
  • Make decisions about the care or wellbeing of the your children;
  • Make (or revoke) a will;
  • Make (or revoke) an Enduring Power of Attorney;
  • Consent to a marriage or a sexual relationship or the dissolution of a marriage;
  • Make decisions abbot adoption of a child;
  • Enter into surrogacy arrangements;
  • Manage the principal’s estate on their death; and
  • Consent to an unlawful act.
  • Vote;
  • Make decisions about the care or wellbeing of the your children;
  • Make (or revoke) a will;
  • Make (or revoke) an Enduring Power of Attorney;
  • Consent to a marriage or a sexual relationship or the dissolution of a marriage;
  • Make decisions abbot adoption of a child;
  • Enter into surrogacy arrangements;
  • Manage the principal’s estate on their death; and
  • Consent to an unlawful act.
Not Applicable as an Advanced Health Directive sets out specific instruction.
Limitation a place on the powers of my Attorney or Guardian
  • That your attorney provides copies of all records to particular family members;
  • That they consult with a specified person prior to acting in a particular decision, such as the sale of your home;
  • Where you have large capital assets, such as property or shares, you should leave clear instructions for your attorney(s) as to how to deal with or distribute;
  • Dispose of these assets;
  • Notify certain persons; and
  • Consult with a specific person e.g. prior to moving to nursing home or prior to making important decision regarding your health and wellbeing.
  • Consult with a specific person e.g. prior to moving to nursing home or prior to making important decision regarding your health and wellbeing; and
  • Provide details of all decisions to a specific person.
Not applicable as an Advanced Health Directive sets out specific in sheet.
When does appointment begin?
  • Upon incapacity
  • Notwithstanding incapacity
Upon incapacity only Not applicable as an Advanced Health Directive sets out specific in sheet.
Who can I appoint?
  • Be at least 18 years of age;
  • Have capacity to make decisions for you; and
  • Agree to act as your attorney.
  • Be at least 18 years of age;
  • Have capacity to make decisions for you; and
  • Agree to act as your guardian.
Not applicable as an Advanced Health Directive sets out specific in sheet.
Are there any exclusions to the appointment? A person to be appointed under an enduring power of attorney must not be bankrupt or insolvent. A person to be appointed under an enduring power of guardianship is a person must not provide you with professional care, treatment or accommodation. Not applicable as an Advanced Health Directive sets out specific in sheet.

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Important information and disclaimer

This publication has been prepared by AustAsia Group, including AustAsia Legal Pty Ltd (ACN 123 160 476).

Any advice in this publication is of a general nature only and has not been tailored to your personal circumstances. Accordingly, reliance should not be placed on the information contained in this document as the basis for making any financial investment, insurance or other decision. Please seek personal advice prior to acting on this information.

Information in this publication is accurate as at the date of writing, 10 October 2018. Some of the information has been provided to us by third parties. Whilst it is believed the information is accurate and reliable, the accuracy of that information is not guaranteed in any way.

Opinions constitute our judgement at the time of issue and are subject to change. Neither the Licensee nor any member of AustAsia Group, nor their employees or directors give any warranty of accuracy, nor accept any responsibility, for any errors or omissions in this document.

Any general tax information provided in this publication is intended as a guide only and is based on our general understanding of taxation laws. It is not intended to be a substitute for specialised taxation advice or an assessment of your liabilities, obligations or claim entitlements that arise, or could arise, under taxation law, and we recommend you consult with a registered tax agent.

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