We do it every day – make decisions for ourselves on all sorts of family, work and lifestyle issues. But what happens to us if we cannot make decisions for ourselves due to illness or accident?
If we have legal documents prepared prior to us losing capacity to make them, our decisions can be made by someone we know and trust. If we do not have those documents in place before we lose capacity then decisions may have to be made by The Public Trustee set up for the purpose of dealing with financial and personal affairs of an incapacitated person, or by someone who would not have been our chosen person.
Most of us, given the choice, would probably choose the first option but to do this we need to sign certain documents whilst we have the mental capacity to make them. A person has capacity to make valid legal documents if they can understand why they are making the document and the choices which may be involved (choosing a person to act for you). You must be able to weigh up the result of giving power to someone else to act for you and you must be able to communicate your decision to make a legal document.
The main reason why we have legal documents giving a person or persons the power to act for us is that they will know our wishes and preferences and will act in our best interests. It is also a cost-effective way of protecting our family, finances and assets. There are three types of documents available to us to achieve this, each with a different purpose. Unlike a Will, the following three documents are effective only while we are alive.
Enduring Power of Attorney
As with a Will, an Enduring Power of Attorney (EPA) when made pursuant to Western Australian law, is a private arrangement where you can choose a person you trust to manage your assets and financial affairs. The person you nominate as your “attorney” can act for you either immediately you sign the document or at a specified time in the future. The power of attorney “endures” through your loss of mental capacity whether it be by accident or illness.
The person you choose to be your attorney should be an adult, someone you consider will act in your best interests and someone who is responsible and trustworthy, able to keep accurate financial records and manage your financial affairs properly.
EPAs are used to manage your property and financial assets, but not your health and medical treatment.
Powers of Attorney can also be used for specific purposes for example if you are going overseas for a lengthy visit and you are selling a property in the meantime or need to appoint someone to run your business whilst you are away. This is a General Power of Attorney and is used for limited tasks and times.
Enduring Power of Guardianship
A person who is your attorney under an EPA cannot make decisions for you concerning your lifestyle or medical treatment. An attorney cannot decide where you will live if you have to move to retirement or care accommodation. For this purpose you can make a legal document to appoint an “enduring guardian” called an Enduring Power of Guardianship (EPG).
If you have an Enduring Power of Guardianship you can choose the person most likely to act in your best interests and look after you in your incapacity in the way that will allow you to retain as much independence as your health circumstances permit and make your own decisions where you can. Your personally appointed guardian can make some or all of your personal, lifestyle and treatment decisions.
If you don’t have an EPG and you lose capacity to make one, then the State Administrative Tribunal may have to appoint a guardian for you to decide where you live and with whom, whether you have to work or attend education or training, the types and frequency of medical, dental or other treatment you receive and with whom you can associate. This can be restrictive and in some cases burdensome on an incapacitated person who cannot express their own free will in these areas. It is best to make our own choices in this area.
Advanced Health Directive
An Advanced Health Directive (AHD) is a legal document where we can direct the type and extent of any medical treatment we consent to in the future if we become sick or injured and unable to tell our medical treatment providers what treatment we want to receive. An AHD can include all ranges of treatment from routine dental treatment to whether we wish to be disconnected from life support if that decision has to be made.
An AHD gives us the power to set out in detail while we have capacity, medical, surgical and dental treatment that we either consent to or refuse to have and in what particular circumstances. A treatment decision in an AHD operates when the maker of the directive (you) are unable to make reasonable decisions with respect to the treatment that is proposed for you. Anything that you write in an AHD will override anything that your guardian under an EPG might choose to do for you.
Get it done!
We all have the right and capacity to make our own decisions and manage our own lives. But if we contract an illness or have an accident that destroys all or part of our ability to do these things for ourselves, we may lose that capacity.
You cannot make any of the legal documents explained above if you lose capacity. Each and every one of us should have a valid Will, enduring power of attorney and power of guardianship. It is also a good idea to have an advanced health directive in place, particularly if you have an existing condition.
If you or someone you know wants more information or needs help or advice, please contact Lynn & Brown Lawyers today on 9375 3411.
About the authors:
This article has been co-authored by Peter Heazlewood of Lift Legal and Jacqueline Brown who is a director at Lynn & Brown Lawyers. Jacqui has over 19 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.