Estate Disputes

Why Gay and Lesbian people need Powers of Attorney and Guardianship

Mal Byrne says a legal Will is not the only essential document for gay and lesbian singles and couples.

Mal Byrne says a legal Will is not the only essential document for gay and lesbian singles and couples.

In my previous blog, I discussed why gay and lesbian singles and couples need a Will.  However, a legal Will is not the only essential document that you need.  A Will only deals with the distribution of your estate after you die.  As life expectancy grows, more people are finding themselves living longer, but becoming infirm due to either illness or disability to the point where they can no longer care for themselves.  You not only need to prepare for death but you need to prepare for losing the physical or mental capacity to care for yourself adequately at some stage in your life.  If that happens, you need to nominate a person or persons who you trust to take charge of your financial affairs and your care and wellbeing.

In order to do this, there are two legal documents that need to be drafted and properly executed.  The first is an Enduring Power of Attorney.  An Enduring Power of Attorney deals primarily with your financial affairs.  Your attorney or attorneys (you can appoint more than one person jointly or jointly and severally to fill the role) will have the power to make decisions regarding your financial affairs and to sign all the necessary documents to fulfil that role.  Your attorney will be able to operate your bank account, acquire and dispose of assets, and manage your finances generally.  Hence, your attorney or attorneys need to be someone you trust intimately.

The Enduring Power of Guardianship deals with the balance of your life being decisions regarding your health and wellbeing including housing and medical decisions.  Your guardian will be able to liaise with your doctors and carers and decide whether you can stay at home, whether you need to go into a care facility and even (if you wish) decisions such as when you will or will not be resuscitated.  Once again, your guardian or guardians need to be someone who you trust intimately.

While hospitals now recognise the partners of gay patients as next of kin, having a Power of Guardianship ensures that everything runs smoothly and that relatives who may be resentful of your relationship cannot interfere.  It is particularly important that single gay and lesbian people have Enduring Powers of Guardianship and Attorney.  If you do not have a handy close relative and you do not nominate a friend or other person who you trust to be your attorney or guardian, the control of your financial affairs may be handed to the Public Trustee of South Australia and medical decisions to the Public Advocate.  While the Public Trustee of South Australia and Public Advocate is ethical and bound by statute to act in your best interest at all times, they do not know you personally and cannot provide you with the type of support that a trusted relative or friend can do in the same circumstances.

It is important to remember that you need your Wills, Endruing Power of Attorney and Guardianship drafted while you have your legal capacity.  Once you lose your legal capacity, you lose the legal powers to have legal documents prepared.

If you lose your legal capacity to manage your affairs say for example due to dementia or Alzheimer’s disease and you do not have an Enduring Power of Attorney or Guardian, someone will have to be appointed in that role by the Guardianship Board.  If you have a partner, that partner is likely to get the appointment, but will have to formally apply to the Guardianship Board and go through the administrative and bureaucratic rigmorale necessary to get the appointment.  While the process may run smoothly, things can become difficult if there are resentful relatives in the wings who use the opportunity to make trouble.  Once again, your partner will already be under stress and grieving to some extent over your declining health.  The last thing s/he will need will be to have to go through a lengthy bureaucratic process which may involve conflict with other relatives to get control of your affairs.  If you want to save your loved ones from that grief and stress, make sure that you have an Enduring Power of Guardianship and Attorney so that everything is locked in.

Mal assists gay and lesbian singles and couples with Powers of Attorney and Guardianship, as well as other Will and Estate issues, in South Australia and Western Australia. 

On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.

Contact your nearest TGB office.