POWER OF ATTORNEY & ENDURING GUARDIANSHIP
The LOSS OF CAPACITY
The loss of legal capacity, through illness, age associated or other conditions, mean that you may not be able to attend to your affairs in the same way, or not at all.
Power of Attorney
In circumstances where we require a person we trust to act on our behalf, either for a specific purpose or on an ongoing basis, legislation provides for the power and authority to be made through what is called a power of attorney.
The role of attorney carries with it responsibilities toward the appointor and these responsibilities are reflected in the various state legislation including New South Wales Power of Attorney Act 2003; Victoria Powers of Attorney Act 2014; and Queensland Powers of Attorney Act 1998.
An appointment of an attorney is revocable by the appointor and attorneys may also resign their appointment.
What is crucial here is that legal capacity re-emerges. The appointor must have the capacity and cognizance to understand what is being done and such an appointment can be challenged if legal capacity is in question. In other words, when such a time arises where you need an attorney, it may be that it is too late for you to make that appointment.
Enduring Guardianship
The appointment of an enduring guardian acts in tandem with an appointment of attorney, except that this appointment draws its effect from different legislation and applies itself to authority to make healthcare decisions.
Where capacity has become an issue and where appointments have been made prior, an enduring guardian may be empowered by the appointor to make decisions with respect to aged care admission or choice of aged care establishment, hospital treatment and end-of-life decisions. More routine decisions include questions around personal care, medical or dental care.
The appointor of an enduring guardian possesses the same latitude, as in the appointment of attorneys, to appoint and revoke guardians and to make appointments which are single, joint or jointly and severally.
The same issue arises in respect of legal capacity, in that any appointment you make has to be prior to the time when you need to have an appointment in place and have already lost capacity. The approach adopted by Graham Green’s character Pinkie in Brighton Rock, who addressed contingency preparation “…between the stirrup and the ground…” is not the best approach.
The lack of an appointment being in place at a time of incapacity means that the alternative is to seek to have an appointment made through state tribunals and the state itself becomes the guardian or ward of last resort.
It should be noted that families can sometimes have disagreements as to decision-making in regards to an incapacitated loved one. These disagreements can percolate or can proceed to tribunals for determination.
While the appointment of guardians does not preclude disputes amongst interested parties, the appointment serves the important purpose of documenting the appointor’s own decisions while capacity to do so existed.
Please contact us to discuss your options as these documents are best to have in place, in the interests of contingency and forward planning, as well as prudence.
Advanced Healthcare Directive
An advanced healthcare directive is a particular type of instruction, where a person, while they are in possession of legal capacity, seeks to give specific instruction, for example, in terms of what their wishes are in respect to artificial respiration or other end-of-life decisions.
The advantage of this document, should the appointor so wish, is to direct the decision-making of a guardian or treating healthcare professionals toward the person’s preferences, where the person is no longer able to articulate those wishes themselves.
Please contact us to discuss what is appropriate for you.
