Enduring Powers of Attorney

A Power of Attorney gives someone the power to manage your assets and financial affairs as if they were you.  

An enduring power of attorney is a type of power of attorney that remains effective even after you have lost the requisite mental capacity and can no longer give instructions to your attorney, monitor their actions or revoke their appointment.

Why do I need an Enduring Power of Attorney?

If you lose the mental capacity to manage your assets and financial affairs, someone will probably need to look after your affairs. 

If you have not granted an Enduring Power of Attorney to the person of your choice, someone may need to apply to the Supreme Court of New South Wales or to the NSW Civil and Administrative Tribunal to be appointed as your financial manager.  An officer from the NSW Trustee and Guardian, a government body, may also need to be involved in the management of your affairs.

Even if you have not lost mental capacity, you may need someone to access your bank account or conduct a transaction for you if, for example, you are overseas, in hospital or just find it difficult to get to do things yourself such as dealing with banks, government agencies and real estate agents.

If you appoint an attorney, you do not lose your own rights to manage your affairs, while you still have the mental capacity to do so. You can revoke the power of attorney at any time you have the mental capacity to do so.



Appointments of Enduring Guardians

An Enduring Guardian is someone you have appointed to make health, medical and lifestyle decisions for you in the event that you have lost the capacity to make those decisions for yourself.


The types of decisions an enduring guardian can make are as follows:


  • To decide where you will live (eg in your own home with support, in an aged care facility, or hospital)

  • To decide the health care you will receive (eg which doctors you will see, the treatment you will receive in hospital and whether you need other forms of treatment such as podiatry).

  • To decide which type of personal services you require such as domestic support, meals on wheels and so on; and

  • To give or withhold consent to medical and dental treatment on your behalf.

Why do I need to make an appointment of Enduring Guardian?

If you have not appointed the person of your choice to make these decisions for you, it may be necessary for someone to apply to the NSW Civil and Administrative Tribunal to obtain the powers necessary to support you. If you have not made a choice, a dispute can sometimes arise between family members or others as to who would be the most appropriate person to act as your guardian.

If you have not appointed someone of your choice to be your enduring guardian and it is necessary for someone to make a decision as to whether or not you will receive medical treatment, in a timely manner, then the “person responsible” for you, as defined in the relevant legislation is entitled to make this decision. If you have not appointed an enduring guardian then the person responsible will be:


  • A spouse or de facto spouse who has a close and continuing relationship with the person. If there is no-one in this category: then:

  • The carer or person who arranges care on a regular basis and is unpaid (the carer pension does not count as payment). If there is no-one in this category: then

  • The carer of the person before they went into residential care. If there is no-one in this category then:

  •  A close friend or relative.

This may not be the person you would otherwise choose to make these decisions for you.

Advance Care Directives/Living Wills


In NSW, it is possible to make a binding Advance Care Directive, setting out decisions you have made about the care you wish to receive or do not wish receive if the end of your life is imminent.


These directions can also be included in your Appointment of Enduring Guardian.


However, an Advance Care Directive is usually more detailed about the specific measures you want or do not want to sustain your life and can include information about your religious and spiritual beliefs, family resources and other values to guide your decision maker.

It is recommended that you make these decisions in consultation with your doctor. 

Why do I need an Advance Care Directive?

If you are happy to leave decisions about your end of life care to your enduring guardian, then you may not need to make an Advance Care Directive.

However, if you have strong views or if your family are likely to disagree about whether or not life sustaining measures should be used in certain circumstances, then you may wish to record your decisions, preferences and values in an Advance Care Directive. 

© 2016 MJM Lawyers Pty Ltd ACN 612 454 949.