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Sometimes life throws us a curve ball and for some reason we are unable to make decisions or understand the consequence of the decisions we do make. This can be a temporary situation or something that will affect us for the rest of our lives; it can happen in a split second or develop gradually over time. If your decision making process is compromised then who will pay your bills, manage your mortgage, or make decisions about where you will live or who will care for you? Who will promote and protect your best interests, involve you in decision making, or speak on your behalf when it comes to medical and treatment decisions? In short, who do you want to stand in your shoes when you cannot do it for yourself?
Many of us assume that our spouse, partner or child can step in, but it’s not that simple. Without legal authority they cannot sign anything on your behalf, access accounts or make decisions about your finances. They cannot, cannot enter into or sign an agreement on your behalf even if they are also a party. They have no legal ability to make any decisions which are yours alone to make. Even the simplest banking transaction may be blocked without evidence of authority. Unless you or the Court delegates this authority then a spouse, partner, child, sibling or close friend has no legal standing.
So what are the options?
Firstly, you can do nothing and if for any reason, either temporarily or permanently you cannot make decisions, then your spouse, partner, child, sibling or friend can make an application to the Court for personal or property orders. Be aware that this can take some time depending on your family situation and there are associated costs. These orders only last 3 years in general and then they must be renewed. However there is a statutory safeguard that requires the property guardian to account for their use of your finances each year.
In the alternative, you can determine how and when these sorts of decisions will be made for you and by whom. By nominating someone in advance you control who makes what type of decisions, when and how they can make them. You can also require your attorney to provide information on, or consult with another, when making decisions. This is called an Enduring Power of Attorney and it will continue in effect until it is revoked or renounced.
We recommend that every person should have an Enduring Power of Attorney in place, as the benefit far outweighs the modest cost. Identifying those that you trust, communicating your wishes in advance and setting up the legal authority for them to act when they need to, will help reduce unnecessary stress in the future. The team at Schnauer & Co would welcome the opportunity to discuss this further and assist you to have peace of mind that someone you trust can make important decisions when you no longer can.
Channel Magazine: Issue 79 August 2017