Enduring Guardian vs Power of Attorney — What’s the Difference?

Life’s ups and downs could make it impossible for you to manage your finances, your property, or your wellbeing. Understanding the difference between enduring guardian vs power of attorney now — and taking positive action — means reassurance today and protection tomorrow.

Enduring Guardian vs POA (Power of Attorney)

None of us know what the future holds.

Hopefully, you will remain in good health and with excellent mental capacity until the day you finally pass on. However, that may not be the case.

Illness, mental degeneration, an accident, or impaired physical function could limit, or prevent, you from suitably addressing your day-to-day affairs. This could affect any area of your life — including your health, well-being, and financial matters.

Enduring Guardianship and Enduring Power of Attorney are both legal tools. They allow another person — carefully selected by you — to make important life decisions on your behalf when you lack the capacity or desire to do this yourself. 

Generally speaking, the difference between these two legal documents is their scope. Enduring Guardianship addresses well-being, health, and accommodation matters — whereas Enduring Power of Attorney attends to property and financial affairs.

Enduring Guardian

Under the Guardianship Act (NSW 1987), you’re permitted — while you still have mental capacity — to name an Enduring Guardian. They will have the authority and responsibility to make health, lifestyle, and wellbeing choices when you lose cognitive ability.

Virtually anyone can be your Enduring Guardian — a family member, trusted friend, accountant, lawyer, or another professional. The only key caveats are they must agree to take on the role and be over the age of 18 years. And, if you wish, you can have more than one Enduring Guardian.

That said, some people are excluded from this role — mainly to prevent abuse and making decisions in their own interest. This includes those who provide you professionally with:

• Accommodation — e.g. a landlord.
• Health or medical care — e.g. a doctor or nurse.
• Support services — e.g. cleaning and cooking services.

Additionally, any relative of those mentioned above who supply you with health, accommodation, or support services are forbidden from becoming Enduring Guardians.

You decide on which matters your Enduring Guardian is allowed to act. And, you can amend, add, or remove permissions as desired — while you have mental capacity. 

Typically, Enduring Guardians can make decisions on:

• Some medical procedures and treatments.
• Choice of wellbeing and medical providers.
• Living arrangements.
• Educational decisions.
• Choice of support service providers.
• Recreational activities.

Enduring Power of Attorney

While Enduring Guardianship targets your lifestyle and health circumstances, Enduring Power of Attorney addresses your property and financial matters.

This means that should you lose mental capacity, a trusted third party — appointed by yourself while you still have cognition — can make decisions on:

• Spending your money.
• Looking after your stocks, shares, and investments.
• Managing your bank accounts.
• Satisfying day-to-day costs, expenses, and bills.
• Collecting and/or determining rent for your rental properties.
• Buying and selling your property.
• Signing legal documentation on your behalf.

You can choose anyone to be your Attorney — although we recommend it’s someone you trust, is in good financial standing themselves, and is willing to continually act in the pursuance of your best interests.

That said, there are a few people who may not hold Power of Attorney, including:

• Minors — those under 18 years of age.
• People who lack the cognitive ability to understand the responsibility of POA.
• Some people who have been declared bankrupt.
• Individuals who are forbidden from holding Power of Attorney by the court.
• Some convicted criminals.

Enduring Power of Attorney

While Enduring Guardianship targets your lifestyle and health circumstances, Enduring Power of Attorney addresses your property and financial matters.

This means that should you lose mental capacity, a trusted third party — appointed by yourself while you still have cognition — can make decisions on:

• Spending your money.
• Looking after your stocks, shares, and investments.
• Managing your bank accounts.
• Satisfying day-to-day costs, expenses, and bills.
• Collecting and/or determining rent for your rental properties.
• Buying and selling your property.
• Signing legal documentation on your behalf.

You can choose anyone to be your Attorney — although we recommend it’s someone you trust, is in good financial standing themselves, and is willing to continually act in the pursuance of your best interests.

That said, there are a few people who may not hold Power of Attorney, including:

• Minors — those under 18 years of age.
• People who lack the cognitive ability to understand the responsibility of POA.
• Some people who have been declared bankrupt.
• Individuals who are forbidden from holding Power of Attorney by the court.
• Some convicted criminals.

Do I Need Both Enduring Power of Attorney and Enduring Guardianship?

In brief, yes! 

Organising both Enduring Guardianship and Enduring Power of Attorney means all aspects of your future wellbeing and finances are addressed — should you lose mental capacity. Hopefully, they will never need to be used, but the future is concerningly unpredictable. 

Enduring Power of Attorney and Enduring Guardianship deliver immense peace of mind — today.

When selecting your Attorney or Guardian, we recommend it is someone who:

• Respects you — including your views, religion, medical preferences, and values.
• Understands the value of confidentiality.
• Is financially responsible.
• You trust.
• Has intelligence, maturity, and diligence.
• Is happy and willing to act on your behalf.

What if I Don’t Have Power of Attorney or Enduring Guardianship?

If you don’t make arrangements for Enduring Power of Attorney or Enduring Guardianship while you still have mental cognition — the results are the same. You’re giving power to unknown third parties.

Should you lose the ability to make decisions on health and lifestyle, the Guardianship Tribunal will decide who will look after your affairs. They could appoint an Enduring Guardian on your behalf — or give the task to the Public Guardian.

And, with no Enduring Power of Attorney — it will be up to the relevant court or tribunal to appoint an official to address your financial and property matters.

In both circumstances, it means that an individual who you have never met, is at odds with your views and preferences, or you may not personally like, could be controlling your financial and well-being interests.

When Should I Arrange Enduring Guardianship and Power of Attorney?

You must arrange your Power of Attorney or Enduring Guardianship while you still have cognition. This is to ensure that you’re not under duress or taken advantage of if your faculties begin to fail.

Remember, Enduring Power of Attorney and Enduring Guardianship only become active when you lose cognitive abilities. Even when arranged, you remain fully and solely in control of your finances, property, and health choices while you still have mental clarity.

Furthermore, you can revoke or amend the scope of these documents — and your appointed representative(s) — at any time, while you have full cognition.

Conclusion — What Is the Difference Between Enduring Guardian vs Power of Attorney?

Both Enduring Guardianship and Enduring Power of Attorney permit another person to make decisions on your behalf — should you lose the mental capacity to do so yourself.

The difference is their reach. Enduring Guardianship addresses accommodation, lifestyle, and wellbeing matters — while Enduring Power of Attorney targets financial, investment, and property affairs.

Falzon Legal is Sydney’s specialist in advising, guiding, and creating your Guardianship and Power of Attorney. Considerately and compassionately, we navigate you through the whole process — allowing you to take control today, for a reassuring tomorrow.

For more advice on Enduring Guardian vs Power of Attorney — call us now.