Enduring Guardian vs Power of Attorney: What’s Different? – Lawpath

Jan 7, 2020
Reading Time: 3 minutes
Written by Laura Worrad

What happens if one day you fall ill and become incapable of making decisions about your lifestyle or medical needs? This is where an Enduring Guardian comes into effect. An Enduring Guardian is a person you appoint to make lifestyle, health and medical decisions for you when you are no longer capable.

It is important to note this only comes into effect when you lose capacity to make these decisions. So you might be wondering who can be your Enduring Guardian? You may choose to appoint any person who is over the age of 18. This person must not be providing professional services such as medical treatment, accommodation or support at the time of their appointment.

Generally, someone with a genuine care and ongoing interest for your welfare should be appointed such as a family member or close friend. For an Enduring Guardian to be appointed, they must have accepted the nomination. While you can remove someone’s appointment, it is important to note this cannot be done after you lose capacity.

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What is a Power of Attorney?

In contrast, a Power of Attorney gives someone the authority to make legal and financial decisions on your behalf. It provides your “attorney” with the capacity to manage your financial and legal affairs when you are not able to do so. A Power of Attorney is often used as a matter of convenience. For example, when someone is travelling overseas for an extended period of time. For more information, read our guide ‘What Does Power of Attorney Mean?‘.

However, this does not mean you lose your right to manage your own affairs. Rather, your “attorney” manages these on behalf of you or on your instruction.

There are two types of Power of Attorneys: General and Enduring. You can revoke a General Power of Attorney at any time. The appointment concludes at your death or if the attorney resigns. This differs to an Enduring Power of Attorney, as their appointment remains if you lose your capacity to make decisions. This is similar to an Enduring Guardianship, as the attorney is tasked with making decisions in your best interest, and on your behalf. To further understand the difference between general and enduring, you can read our guide ‘Power of Attorney: General v Enduring‘.

So What’s The Difference?

You may be wondering what distinguishes the two. The key difference is that a Power of Attorney makes decisions over financial and legal affairs. Whereas an Enduring Guardian has the power to decide on matters regarding lifestyle, health and welfare.

However, they are similar in that they are both legal documents that provide a person with the power to act on your behalf. This comes into effect when you no longer have the capacity to do so. Generally, both documents are included as part of your will or estate plan.

Should I Have Both?

Short answer – yes. While it may seem unnecessary or unlikely you will need an Enduring Guardian or a Power of Attorney, things can happen. It is important to appoint both an Enduring Guardian and a Power of Attorney. This is because they both play important roles in ensuring your affairs remain in order and your wishes are heard.

When you are choosing someone to appoint, it is important you trust them. Further, you should ensure they have your best interests at heart and that they understand your wishes. For assistance on actioning these matters, you can customise our General Power of Attorney legal document for free.

Concluding Thoughts

While an Enduring Guardian and a Power of Attorney may seem similar, there is a fundamental difference in their powers. It is always best to be proactive and appoint people in these roles early, before it becomes an urgent matter. For more information and advise, we recommend consulting an Estate Planning Lawyer for assistance.

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