Planning for incapacity

Introduction

It is currently estimated that just over 400,000 Australians are living with a diagnosis of Dementia and with an aging population, these numbers are only expected to rise. As well as Dementia, there are other illnesses or situations that would someone to lose decision making capacity.  

If you want to be able to choose who makes these decisions for you in circumstances that you have lost capacity to make these decisions for yourself, it is essential that you have in place an Enduring Power of Attorney (for both financial and personal matters) and an Appointment of Medical Treatment Decision Maker. Without having these documents in place, it will be in the hands of your loved ones or other to obtain authority from VCAT to make the appropriate arrangements for you, without your input.  

Enduring Power of Attorney

This type of Power of Attorney is for financial and/or personal matters. As the name suggests, it endures for your lifetime, even after loss of capacity, and enables your attorney to act for you in personal, financial and legal matters.

What are the decisions that a Power of Attorney authorises someone to make?

Your attorney has very broad powers including the ability:

• To undertake financial and property transactions on your behalf.
• To decide where you are to live, whether permanently or temporarily.
• To decide whether you should or should not be permitted to work and, if so, the nature or type of work.
• To make decisions on your daily diet and dress.
• To restrict visitors to such extent as may be necessary in your best interests and to prohibit visits by any person that person would have an adverse effect on you.

What safeguards do I have?

The appointment of an Enduring Power of Attorney, as with a Will, can be amended by you at any time to suit your current wishes or circumstances.

Further:

• You may appoint more than one attorney and provide directions as to whether the attorneys must act together, if one can act alone, or if decisions may be made by the majority of attorneys.
• You may direct whether your attorney(s) can act in regard to personal matters, financial matters, or both. You may have different attorneys act in respect to each area of decision-making.
• You may specify conditions, limitations or instructions about how your attorney(s) may exercise the power given to them. Including when the powers granted to the attorney will come into effect.
• While you have the capacity to do so, you are entitled to revoke the Power of Attorney at any time.
• We also recommend that appropriate powers be included to suit your own individual circumstances and affairs. This might include, for example, powers to make decisions regarding your superannuation death benefits.
• An Enduring Power of Attorney is important to consider, your attorneys will continue to have the power to act on your behalf even if you subsequently cease to have cognitiveability to act for yourself, unlike a General Power of Attorney.

Appointment of Medical Treatment Decision Maker

Decisions about your medical treatment will be referred to your Medical Treatment Decision Maker, who is appointed in a separate document. The person or people entrusted with this appointment have very significant responsibilities including:

• Authorising an operation
• Authorising the cessation of life supporting treatment
• Authorising medication to be prescribed and administered (in consultation with medical practitioners).

Your Medical Treatment Decision Maker must make the decision that they believe is the decision that you would have made if you had decision-making capacity. In doing so, they must have regard to:

• Your values directive (if any) in your Advance Care Directive
• Any preferences that you expressed during your life or could be inferred from the way you lived your life
• The likely effects and consequences of the particular medical treatment.

Your Medical Treatment Decision Maker can also refuse medical treatments. Any refusal of treatment must take into consideration the points listed above, as well as any available medical advice.

Advance Care Directive

Decisions will not be referred to your Medical Treatment Decision Maker if you have already set out your binding instructions (or preferences and values) in a separate Advance Care Directive document.  Advance Care Directives can be made in relation to your medical treatment in the event that you are incapable or otherwise unable to make your own decisions for that particular medical treatment or procedure in the future. Advance Care Directives can include directions in relation to the following matters (among many others):

• Operations or procedures, both invasive and non-invasive
• Treatment for mental illness
• Prescription or non-prescription pharmaceuticals
• Life support
• Dental treatment
• Palliativecare.

Advance Care Directives may contain either an instructional directive, a values directive, or both.

Instructional Directive

An instructional directive is an express statement which takes effect as if you have consented to or refused consent to a particular medical treatment yourself. These directions are often made in consultation with your medical practitioner.  

Values Directive

A values directive is a statement of your preferences and values as a basis on which you would like any medical treatment decision to be made on your behalf.

Without an Advance Care Directive in place, your Medical Treatment Decision Maker will instead be guided by their knowledge of your wishes and priorities.

How Sharrock Pitman Legal can assist?

For most of us, planning for the future involves planning for the things we’d like to do. An Enduring Power of Attorney enables you to manage your wellbeing at times when you need to rely on others, so that you can continue to live as you would wish.

Our Accredited Specialist Wills & Estates team can provide assistance with succession planning to safeguard you and your assets. Please do not hesitate to contact us on 1300 205 506 or email willsandestates@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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