An illness such as Alzheimer’s disease affects your mental functioning and memory. Part of this entails losing the ability to make decisions, judge situations and communicate your personal wishes to others. That is why it is recommended that people with this illness should plan ahead to ease the burden on their family members and loved ones.
By planning ahead, you can legally appoint an individual or individuals to make decisions about specific aspects of your personal, medical or financial affairs. This will ensure that if you lose the capacity to make your own decisions, your wishes will still be followed as closely as possible in the future.
The Guardianship and Administration Act 1993 defines mental incapacity as ‘the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs’. Mental capacity means that a person is able to understand and retain information and make a choice based on that information.
A power of attorney is a legal document that authorises one or more people to handle your financial affairs. The Enduring Power of Attorney (EPA) is most commonly used in Australia. Let’s find out how EPA’s work:
– An Enduring Power of Attorney (EPA) is a legal document where you choose someone to manage your assets as well as financial and legal matters if you are unable to do so because of an accident, illness or your absence. You can also use an EPA if you feel you cannot cope with the complexity of managing your financial affairs.
– An Enduring Power of Guardianship (EPG) allows you to appoint someone (an Enduring Guardian) to make important personal lifestyle decisions such as accommodation, holidays, relationships and medical treatment, should you lose mental competence in the future. You cannot delegate the powers of an Enduring Guardian to another person. Once in place, the EPG may be applied if and when necessary.
– A Medical Power of Attorney (MPA) enables you to appoint a medical agent to make decisions regarding medical treatment if you become unable to make these decisions yourself. If you already have an EPG in place, you may not need to obtain a separate MPA.
Ten things to know about an EPA
– An EPA needs to be signed when you have the mental capacity (being of sound mind) to do so.
– It offers flexibility as it may come into effect immediately or be deferred for a future need or event.
– Enduring Powers of Attorney continue to operate or only come into effect should you become mentally incapable.
– You can specify the EPA for a fixed period or to perform a specific task.
– You may revoke it at any time, provided you have mental capacity to do so.
– If you appoint a person such as a friend, family member or another trusted person to manage your financial and legal affairs he/she is called your attorney, although in this context it does not have to be a lawyer.
– You can arrange an EPA through a private lawyer, the Public Trustee, COTA SA or by purchasing an Enduring Power of Attorney: a Do-it-Yourself Kit, which is available from various organisations such as the Legal Services Commission of SA.
– Choosing a legal professional (attorney) is a vital decision, so think carefully about whom you give the power to act in your best interests.
– Ask yourself whether he/she is actually willing to be appointed and whether there are likely to be any disagreements or problems between friends and/or family members.
– Before you make an EPA, make sure you understand what the document is, why you want one and who you are appointing as your attorney.
Lucy Malenczuk, policy adviser on financial services for Age UK, says if a person wants to draft his/her own fairly simple document or use a Do-it-yourself Kit and feels confident about specific decisions, it is not always necessary to get legal advice. However, she stresses that “there is the danger of making errors of judgement that could make life unintentionally difficult” for your attorney in future.
Choosing someone to act on your behalf
An EPA is a serious and powerful legal document! When deciding to choose someone to act as your agent for an EPA, remember that he/she will have access to all your money, business affairs and property at a time when you may not know what is going on and are at your most vulnerable.
Although a family member or friend may generally be more accessible and less expensive than a legal professional, you need to consider whether he/she will do a satisfactory job of this important function.
Whether you choose a family member, friend or legal professional, make sure that:
– It is a competent, reliable adult who is able and willing to act on your behalf.
– You trust the person to have total integrity in carrying out your wishes and acting in your best interests at all times.
– The person knows you well enough to make the type of choices you would make for yourself.
– He/she is aware of your views regarding decisions he/she might be asked to make for you.
– He/she is not too busy to handle your affairs.
– The person is organised and handles his/her own affairs efficiently.
New changes in 2014
While documents such as Enduring Power of Guardianship (EPG) and Medical Power of Attorney (MPA) make provision for other important aspects of your life – changes to the law in Australia are expected to come into effect in 2014 following the passing of the Advanced Care Directive Act 2013.
This new Act creates a single Advance Care Directive that will replace the existing EPG, MPA and AD. It will not affect existing Power of Attorney documents, while those completed before the new Act comes into effect will continue to be valid.