Introduction
Planning for the future can feel daunting, especially when it involves estate, health, and welfare decisions. In New South Wales, two critical legal tools enable you to appoint trusted individuals to manage your affairs if you’re unable to do so yourself: the Enduring Power of Attorney (EPOA) and Enduring Guardianship. Although both serve to empower someone to act on your behalf, they cover distinctly different areas. This article unpacks their differences, intersections, and practical steps to help you make informed decisions for the well-being of yourself and your loved ones.
1. Definitions & Purpose
Enduring Power of Attorney (EPOA)
An EPOA is a legal document authorising someone—referred to as your attorney—to make financial and legal decisions on your behalf. Crucially, it continues to operate even if you lose capacity to make decisions yourself.[1] This can include:
- Managing bank accounts
- Paying bills
- Handling investments
- Buying or selling real estate (which requires registration)[2]
Enduring Guardianship (EG)
An Enduring Guardianship allows you to appoint someone – your Enduring Guardian – to make personal, health, and lifestyle decisions for you if you lose decision-making capacity.[3]
This covers:
- Medical treatments
- Accommodation and daily living arrangements
- Healthcare decisions tailored to your personal values and advance directives[4]
2. Key Differences at a Glance
| Aspect | EPOA | Enduring Guardianship |
| Powers Granted | Financial & legal affairs | Health, welfare & lifestyle decisions |
| Activation | Upon loss of capacity (or immediately, if specified) | Upon loss of capacity |
| Scope Limitations | Cannot make medical or lifestyle decisions | Cannot manage finances or property |
| Required Formats | Must be witnessed by authorised professionals; real estate dealings require registration[5] | Similar witnessing requirements; no property involvement[6] |
Together, they form a comprehensive safety net for managing your affairs, financially and personally, if you become unable to do so yourself.[7]
3. Why Both Are Crucial
Appointing both an EPOA and an Enduring Guardian ensures your affairs are managed seamlessly across all areas of your life, with minimal disruption and maximum alignment with your preferences.[8]
Without both in place:
- Courts or tribunals (e.g., NCAT) may appoint a Financial Manager and/or Guardian for you, potentially someone you haven’t chosen.[9]
- Legal and personal decisions may lag or be mishandled, adding stress to your loved ones during difficult times.
4. Practical Steps: How to Set Them Up in NSW
A. Make Them While You Still Have Capacity
Both documents must be executed while you still have mental capacity, once capacity is lost, neither can be made.[10]
B. Choose the Right People
Select individuals who:
- Understand your values and wishes
- Are reliable and trustworthy
- Are capable of fulfilling the responsibilities
- Agree to act in the role[11]
C. Formal Requirements
- EPOA: Requires witnessing by a solicitor, NSW Local Court Registrar, licensed conveyancer, or NSW Trustee & Guardian employee trained under the Powers of Attorney Act 2003 (NSW). [12]
- EG: Supported by similar formal witnessing requirements; optional inclusion of an Advance Care Directive to express specific medical and end-of-life preferences. [13]
D. Registration
- EPOA: If it involves real property in NSW, registration with NSW Land Registry Services is mandatory. [14]
- EG: No land registration required
E. Storage & Communication
Keep originals in a safe place and inform attorneys/guardians and close family where to locate them. You may store them with your solicitor or the NSW Trustee & Guardian for a fee. [15]
F. Regular Review and Revocation
You can revoke or update either document as long as you have capacity, for reasons such as changes in trusted relationships or your personal situation[16]
5. Real-World Scenarios
Scenario 1: Sudden Illness
You slip on your driveway, suffer a concussion, and temporarily lose capacity.
- Your EPOA manages immediate financial needs: pays medical bills, handles day-to-day expenses.
- Your Enduring Guardian oversees decisions about your hospital care and temporary living arrangements.
Scenario 2: Progressive Decline
A diagnosis of dementia means a gradual loss of capacity.
- With both documents in place, your affairs are handled respectfully by those you trust, your estate plan continues smoothly and ethically.
Scenario 3: Nothing in Place
Without EPOA or EG, NCAT may step in:
- Appointing a Financial Manager (often the Public Trustee) for your assets
- Appointing a Guardian (possibly the Public Guardian) for personal decisions. [17]
6. Advance Care Directive: A Complementary Tool
An Advance Care Directive (ACD) lets you specify treatment preferences and life goals in writing and is often combined with your Enduring Guardianship to guide your guardian’s decisions.[18] Whereas the EPOA and EG appoint decision-makers, the ACD provides a roadmap for them to follow.
7. Avoiding Abuse & Ensuring Clarity
Misuse of these powers can arise, especially if there’s misunderstanding about the scope of authority. For instance, without explicit instructions, an enduring guardian may not have the right to control who visits you. Drafting clear, comprehensive documents, and reviewing them regularly, helps prevent disputes and misuse.[19]
Conclusion
In NSW, having both an Enduring Power of Attorney and an Enduring Guardianship is essential for responsible, proactive estate planning. Each serves a defined, vital function, one in financial/legal domains, the other in health and personal affairs. Together, plus an optional Advance Care Directive, they form a robust, person-centred strategy for protecting your wishes and easing burdens on loved ones if you’re no longer able to make decisions yourself.
What You Can Do Next
- Reflect on who you trust to fulfil each role—preferably discussing it with them first.
- Consult a solicitor or contact NSW Trustee & Guardian to draft and witness both documents properly.
- Include an Advance Care Directive to clearly communicate your medical preferences.
- Store documents securely and inform those involved where they are.
- Review documents every few years or following significant life changes.
Footnotes
[1] NSW Government, ‘Make a Power of Attorney’, https://www.nsw.gov.au/family-and-relationships/planning-for-end-of-life/make-power-of-attorney.
[2] RACP, ‘Enduring Power of Attorney & Guardianship’, https://www.racp.edu.au/docs/default-source/trainees/training-resources/afrm-nsw/enduring-power-of-attorney-enduring-guardianship-julia-suljada.pdf.
[3] Local Court of NSW, ‘Enduring Guardianship’, https://localcourt.nsw.gov.au/help-and-support/power-of-attorney-and-enduring-guardianship/enduring-guardianship.html.
[4] SCB Legal, ‘Power of Attorney and Enduring Guardianship’, https://scblegal.com.au/wills-estates/power-of-attorney-and-enduring-guardianship/.
[5] NSW Government, above n 1.
[6] Ibid.
[7] BDN Lawyers, ‘Enduring Power of Attorney vs Guardianship Explained’, https://www.bdn.com.au/enduring-power-of-attorney-vs-guardianship-explained/.
[8] Lawpath, ‘What’s the Difference Between Appointing an Enduring Guardian and Power of Attorney?’, https://lawpath.com.au/blog/whats-the-difference-between-appointing-an-enduring-guardian-and-power-of-attorney.
[9] Complete Law, ‘Who Should You Appoint as Your Power of Attorney and Enduring Guardian in NSW?’, https://completelaw.com.au/who-should-you-appoint-as-your-power-of-attorney-and-enduring-guardian-in-nsw/.
[10] SCB Legal, above n 4.
[11] Complete Law, above n 9.
[12] Powers of Attorney Act 2003 (NSW) s 19.
[13] Local Court of NSW, above n 3.
[14] NSW Land Registry Services, ‘Power of Attorney Forms’, https://www.nswlrs.com.au/.
[15] NSW Government, above n 1.
[16] BDN Lawyers, above n 7.
[17] Ibid.
