IF YOU BECOME INCAPACITATED - WHO SHOULD MAKE YOUR DECISIONS?
Do you know who would make your decisions for you if you became incapacitated? A will can deal with the position if you die. But it’s what happens when you are alive and unable to make decisions that creates the biggest problems.
In the same way that income protection is a higher priority than life insurance; what happens if you can’t look after your money or health is a higher priority than a will. If you want someone to look after your finances in the event you are unable to do this yourself, you need to appoint a power of attorney. The rules on this vary from State to State.
Power of Attorney
A Power of Attorney enables you (the Principal) to authorise someone else (the Attorney) to carry out financial transactions on your behalf. You must have mental capacity to understand what you are doing when you make the Power.
A standard or general Power of Attorney will cease to have effect if you lose your mental capacity. If you want it to continue after you lose your mental capacity you will need an enduring Power of Attorney.
There are some subtle differences in the drafting and signing requirements. An Enduring Power must have your signature witnessed by a prescribed person such as a solicitor, barrister, Registrar of the Local Court or a licensed conveyancer.
Appoint someone you trust and is willing and able to act when the time comes. Your attorney in effect gets to act as if they were you. So make sure you know and trust them well. It can make sense to keep the Power of Attorney with your lawyer or someone else you trust so the attorney has to go get it at the time as a protection.
If the attorney needs to deal with real estate, the Power will need to be registered with the Land Titles Office. This can be done at the time.
A Power of Attorney deals only with money matters. The Guardianship Act (NSW) allows a you to appoint someone to make decisions on your behalf about things like where you will live and what health care they you want, and to consent to medical or dental treatment. It only becomes operative if you are unable to make decisions yourself.
Both the person making the appointment and the guardian must sign an appointment of enduring guardian form, and it must be witnessed by an Australian solicitor or barrister or the Registrar of the Local Court or overseas-registered foreign lawyer.
You can leave instructions for your Guardian or attorney or others about your future medical treatment if you were to become incapacitated. You might for example, specify what measures are, or are not to be taken to prolong your life.Although such documents are often called living wills, they are not legally binding, and have nothing to do with your normal will. They are more accurately called Advance Care Directives, but are important guides to help those that need to decide what to do when you can’t.
Vince Scully | LifeSherpa
With over 25 years in Financial Services from consulting to management, Vince Scully is the go-to guy for wealth management and financial advice. Before creating LifeSherpa, Vince founded the Calliva Group; a fund manager, product issuer, adviser and lender. Vince is an adviser to the Wealth Management Industry, and prior to his role as CEO at Calliva, a senior member of Macquarie Bank’s infrastructure team.