Understanding power of attorney, guardianship, wills and legislation

It is not something anyone likes to think about, but there may come a time in your life when you are unable to make informed decisions for yourself and you will need a power of attorney.

If you are going to be accessing aged care, it is wise to consider who will manage your affairs as you age and consider the possibility that you may not be able to make decisions for yourself in the future.

In Queensland the guardianship legislation is comprised of the Guardianship and Administration Act 2000 and Powers of Attorney Act 1998.

Understanding how to navigate legislations, power of attorney, guardianship and wills can enable you to be prepared if ever you find yourself unable to make decisions for yourself in the future or if you are called upon to make decisions for somebody else.

There are some fundamental differences between power of attorney and guardianship:
Wills
Whilst you are of sound mind it is important to consider ensuring the details of your will are in order. Often wills are written many years before they have to be considered so your decisions and circumstances may have changed and it is important to keep them updated.

Power of attorney
If you are diagnosed with an illness that poses risks of affecting your mental state or you becoming incapacitated you may want to consider appointing a power of attorney and confirming the details of your will. If you don’t appoint a power of attorney prior to being incapacitated, the court may appoint a guardianship for you.

With a power of attorney you choose who you want to make financial decisions for you if you ever become incapacitated. You are able to choose whether you give full power of attorney or limit to specific transactions when it comes to your affairs.

Guardianship
With guardianship a court chooses for you. This is usually when you are deemed unable to make the decision yourself due to a mental disability or significant illness. Guardianship is a legal relationship between the person unable to take care of their own affairs and the guardian.

The guardian is legally authorised to make financial, legal and healthcare decisions. An example of guardianship being appointed may be when an elderly person is unable to make decisions for themselves due to physical and mental limitations so the child is appointed guardianship of their elderly parent.

Guardianship has strict state laws imposed and due to the profound loss of freedom, is only imposed when other alternatives have proven ineffective.

Both a power of attorney and guardianship act as tools to ensure someone is responsible for making decisions on your behalf if you’re unable to make these decisions yourself.

To discuss in more detail for yourself or for a loved one, contact a family lawyer who can provide accurate and informative legal information.

 

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