Power of Attorney & Guardianship

Many people assume that their next of kin will be able to make decisions for them and take charge and sign documents in their name if they are not well enough to do so for themselves.

This is rarely true in financial matters.

It is sometimes true in issues concerning your health, but there are many gaps in that.  And some of the really hard decisions can’t be made just on the basis of being a spouse or relative.

Think about it.  If you and your spouse/partner buy or sell a house, both of you need to sign.  It is never enough for just one owner to sign.

Or, what about spouses who are separated but not divorced?  As a legal spouse, should they have the right to operate their ex’s bank accounts or sell or mortgage a house?  No.  (Unless you have given them a Power of Attorney and forgot to cancel it when you separated.)

Many people think that this is an issue for old people.  It isn’t.  Serious health issues and accidents can strike at any time.  And it all has to be organised in advance while you are in good health.  You and your family will not be able put these arrangements in place the day after you have a bad stroke or accident.  That can be just too late.

A Power of Attorney appoints one or more people to deal with your affairs (other than your health and lifestyle issues).  You can stipulate that your attorneys may use their powers at any time that they think that they need to do something for you – even though you may not be legally incapacitated at that time. Or you can stipulate that they cannot use the Power of Attorney unless you become legally incapacitated.

An Enduring Guardian is a separate legal document.  You can appoint one or more people to make decisions about your health and lifestyle.  This can never operate except when you are incapacitated.  You can give instructions to your Guardian in that document on important issues such as life support.

There are forms that you can buy to prepare these documents.  I recommend having it drawn up by a South Australian solicitor.  I give you more choices about the arrangements you can make, I can answer any queries and you will know that everything has been done correctly.

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