If you are incapacitated without having appointed an enduring guardian or an enduring power of attorney, then you may lose the ability to choose who makes decisions on your behalf.
If you lose the capacity to make decisions for yourself you may be referred to the Guardianship Tribunal, which is a part of the New South Wales Civil and Administrative Tribunal (NCAT).
The purpose of the Guardianship Tribunal is to enable decisions to be made for people who lack the capacity to make decisions on their own and for people who are in need of a legally-appointed substitute decision maker.
The Guardianship Tribunal has the authority to make guardianship orders, financial management orders, provide consent for treatment, review enduring powers of attorney or enduring guardianship appointments and approve clinical trials on behalf of people with decision-making disabilities.
Guardians can be appointed by the tribunal for people who are 16 or older. A family member or friend may be appointed as a private guardian. If this is not a suitable option then the NSW Public Guardian will be appointed.
A financial manager makes decisions regarding monetary affairs on your behalf, such as operating bank accounts, buying or selling property and paying bills. An application for a financial manager will generally only be considered by the tribunal if there are no alternatives in place or an acceptable alternative cannot be found.
Under the Guardianship Act 1987 a person is able to appoint an enduring guardian in case they may be required. These powers can only be transferred to someone over the age of 18 and they cannot be employed by you to act as your enduring guardian.
An enduring guardian has the legal authority to make health and lifestyle decisions on your behalf should you no longer have the capacity to make them on your own.
Enduring Power of Attorney
An enduring power of attorney can be appointed under the Powers of Attorney Act 2003 to make financial decisions on your behalf should you no longer have the capacity to do so.
An enduring guardian and an enduring power of attorney are complementary powers and can be appointed to the same person or different people.
In order to appoint the person you feel will act in your best interests, whether it is health-related or financial, contact a lawyer and start estate planning.