What happens if you are mentally incapacitated and cannot make decisions for yourself? If you have made an Enduring Power of Attorney and an Advance Care Directive, the people named in those documents are authorised to make decisions on your behalf. If you haven’t made those documents, often an application for orders from SACAT is required.
An Enduring Power of Attorney relates to financial and legal matters. An Advance Care Directive relates to medical and lifestyle matters. It makes sense to have both in place to cover all decisions which might need to be made.
Even though many people expect they will only need these documents later in life, it is important to put them in place early to be sure they are there when you need them. It can be very traumatic when a solicitor cannot prepare one or both of these documents because a person has already lost legal capacity.
Enduring Power of Attorney
If you are making a Power of Attorney, you must consider who you want to make decisions on your behalf in relation to financial and legal matters, including operating your bank accounts and investments.
It is often a good idea to name more than one attorney, so there is a “back-up” if the first attorney is not able to act in that role.
Of course it is important the people appointed as attorneys are trustworthy, but they must also understand what they can and cannot do. They cannot deal with your money as if it were their own. They must act in your best interests. They cannot give your money away, even if they think you would want them to, unless you give them the authority to do so in the Enduring Power of Attorney.
We are always ready to advise attorneys on their duties and responsibilities. We can give your attorney the support they need to know they are doing the right thing.
Advance Care Directives
As well as appointing people to make decisions about medical matters if you are not able to make those decisions yourself, an Advance Care Directive allows you to state clearly what treatments you do or do not want to receive in certain circumstances. Making a decision to refuse treatment for a loved one is one of the most difficult decisions a person can have to make. Having an Advance Care Directive in place can make that difficult decision a little easier, or it can relieve your loved ones of that burden altogether.
You can also empower people to make decision on your behalf about general social or lifestyle matters, such as where you live and what activities you participate in.
We can draft the document so one person is authorised to make decisions, and then another person or people are authorised if the first person is not able to make decisions.
Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directions
Advance Care Directives came into existence on 1 July 2014. Before that date, Enduring Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directions all operated in the same area. If you validly executed one of those documents before 1 July 2014 it will still have effect, but it will not do everything an Advance Care Directive does.
If you would like our advice on whether the document you have is effective, and whether it can be improved upon, let us know.