Q: What is the difference between an Enduring Guardian, Enduring Power of Attorney and General Power of Attorney?

Enduring Guardianship – If you lose capacity to make your own decisions and your Advance Care Directive does not cover the current situation, an Enduring Guardian can make decisions about health matters for you.

Enduring Power of Attorney and General Power of Attorney – An Enduring Power of Attorney is a legal document that allows you (the Principal) to nominate one or more persons (referred to as attorneys) to act on your behalf. An Enduring Power of Attorney gives the Attorney the authority to manage your legal and financial affairs, including buying and selling real estate, shares, and other assets, operating your bank accounts and spending money on your behalf.

The Attorney’s power continues even if for any reason you lose your mental capacity to manage your own affairs. Once you lose your mental capacity you cannot revoke this Power of Attorney. If you want the Power of Attorney to cease if you lose your mental capacity, use the General Power of Attorney as a General Power of Attorney can be set for a certain amount of time.

An Attorney under an Enduring Power of Attorney cannot make decisions about your lifestyle or health. These decisions can only be made by a Guardian. (Enduring Guardianship).

What is Advance Care Planning?

Advance Care Planning is a process by which you reflect upon and document your personal values and preferences to guide your future health care decisions in the event that you become unable to speak for yourself. It is about taking control of your health care wishes now and into the future.

What is an Advance Care Directive or Advance Care Plan?

Should you become seriously ill and not able to make or communicate your own decisions then an Advance Care Plan sets out your wishes into the future. It is best to engage in advance care planning while you are well, or in the early stages of an illness, such as dementia.

Every competent adult has the legal right to accept or refuse any medical recommended treatment. If you are unable to make and communicate your own decisions at the time of treatment, doctors and other health professionals will refer to your plan to identify your wishes.

Why do I need a Will?

Your Will sets out what you would like to happen to your worldly possessions and assets once you leave this mortal coil, you can leave specific things of sentimental or other value to specific loved ones whilst still providing for your family. Without a valid Will the Court will decide according to the Succession Act and it may not be what you wanted.

What is an Executor?

This person carries out your wishes according to your Will. This is one of the most important roles for anyone to have in your end-of-life planning. We find that most people asked, are honoured to carry out this role.

What is Probate and Letters of Administration?

After your passing, the Executor of your Will, will administer your estate, carry out your wishes and finalise your worldly affairs according to the law. The first step in this process is applying to the Supreme Court of NSW for Probate by sending the original Will. It is only after Probate has been granted that the Executor can properly undertake their role.

If you die without a Will (intestate), somebody has to apply to finalise your worldly affairs whilst not knowing what you wanted. This process is called applying for Letters of Administration, which also involves the Supreme Court of NSW. The rules of how your assets will be divided are set out in legislation. This can result in an unintended outcome, for example, ex-partners inheriting your estate and your children missing out.

What is Mental Capacity in terms of the Law?

There is no single definition of mental capacity in New South Wales. Rather, the legal definition of mental capacity depends in each case on the type of decision which is being made or the type of transaction involved.

This means there are a variety of legal tests of mental capacity. Some are contained in legislation such as the Guardianship Act 1987 (NSW) and others have been developed in common law, such as the test for testamentary capacity.

The different legal tests of mental capacity mean that a client may have the mental capacity to make some decisions, such as deciding whether to enter into more complicated financial arrangements.

A finding of incapacity in one area does not automatically mean that mental capacity is lacking in another area; for example, the Supreme Court of NSW has found that a person who is incapable of managing their financial affairs may still be mentally capable of making a Will. It has been suggested that the same mental capacity may not be necessary to revoke a Will as to make one. Similarly, lesser mental capacity may be needed for a codicil than a Will.

A person may not be capable of managing their affairs but have the mental capacity to make an Enduring Power of Attorney. A person may not have the mental capacity to make a contract but have capacity to make a Will. Similar, if not greater, mental capacity is needed to make a Power of Attorney compared to that required for a Will.

What is the difference between a divorce and a property settlement?

A divorce is the legal severing of a relationship and that is it. Australia is a no-fault divorce country, which means, that unless you have children under 18 years of age, then you do not need to present yourself to Court for you to become divorced, unless directed to by the Court.

A property settlement is the dividing up of your personal and shared property and assets. You can do this before or after you have divorced. You do not have even been married to undertake a property settlement.

Is Domestic Violence just when I get physically assaulted?

No, Domestic Violence doesn’t just include being physically assaulted. Read more on Domestic Violence.

It also includes:

Verbal Abuse
Gaslighting of Abuse / Minimises abuse
Substance Abuse
If things are broken and smashed around you to frighten you
Controlling behaviour
Cruelty to Animals
Cruelty to children
Cultural abuse
Going from Dr. Jekyll to Mr Hyde
Emotional / Psychological abuse
Extreme jealousy
Financial Abuse
History of violence
Intimidation and violence
Isolation
Projects blame
Rape or use of force in sex
Sexual abuse
Social abuse
Spiritual and religious abuse
Technology abuse
Use of privilege

Please reach out for an appointment here with our DVLO if any of the above concerns you.

What is the difference between a Parenting Plan and Consent Orders?

A parenting plan is a written agreement between parents, voluntarily entered into and signed, that outlines how they will share the care and responsibilities of their children. This can be achieved outside of Court but is not legally binding.

In family law, consent orders are court orders that arise from an agreement between parties, formalising arrangements for issues like parenting, property division, or financial matters. They are legally binding and enforced by the Court.

It is usually our preference to draw up consent orders over a parenting plan as consent orders are enforceable.

What is the difference between a Binding Financial Agreement and Consent Orders?

A Binding Financial Agreement (BFA), also known as a prenuptial or cohabitation agreement, is a legally binding contract outlining how assets and liabilities will be divided in the event of a relationship breakdown, such as divorce or separation. Although, BFA’s do not provide certainty as they have been known to be overturned when brought before a court.

It is usually our preference to draw up consent orders over a BFA as Consent Orders are reviewed and approved by the Court, ensuring the agreement is just and equitable, and are generally more difficult to overturn than BFA’s. BFA’s carry more risk regarding enforceability and potential for being set aside.

Have more questions? Book an appointment here.