Jean Kittson
How to Put Your Legals in Place

Being a carer can be especially demanding when it comes to helping arrange all the necessary legal and financial documents. It is hard enough for ourselves, let alone having those tricky conversations about wills and finances and end of life wishes with our loved ones. Not to mention the mind-numbing tangle of titles such as Powers of Attorney, Enduring Powers of Attorney and Enduring Guardianships and Medical Guardianships.

HEADS UP #1:

The name of these documents and the legal authority they confer vary from state to state so if you decide to search them on the internet be sure you have defined your state.

They don’t make it easy! Derr.

We need to help our elders put in place these documents – including a Will and an Advanced Care Directive – to ensure their wishes are understood, legally recorded and can be carried out. Otherwise, chaos and conflict is guaranteed.

The start of putting these documents in place is a chat, a conversation. Even though our elders set the agenda, you will need to know what needs to be discussed. You also need to be patient, to listen, to take notes, to always have your elder at the centre of these conversations and to be prepared to have many conversations about the same topic.

These conversations should not feel like an ambush. Or an intervention. Never ever let your elders feel they are a burden, or an embarrassment, or helpless. The emphasis should be on ensuring they have control over decisions and a plan in place in case they are unable or unwilling to make decisions themselves.

HEADS UP #2

You don’t have to approach these conversations armed with all the facts, your notebook, the documents or a solicitor. It might be helpful for you and your elder to approach this at the same speed and at the same time. Exploring these documents together is an empathetic and constructive way to make this a ‘normal’ process.

For example, maybe Enduring Guardianships could be a subject that comes up while you’re watching a medical drama together on TV.

It could come up while you’re discussing a friend’s situation.

It could be introduced when you say you’re doing it for yourself. Whatever the context, the underlying message is to make sure your elder makes these important decisions and you help facilitate putting these necessary legal documents in place. Put them in place for yourself while you are at it.

Appointing Decision Makers
For most of us, there will come a time when we are unwilling or unable to manage life’s administrative and bookkeeping jobs. These might include making decisions about energy plans, or a Support at Home program (the old Home Care Package), or going to the bank to change an account to one with a better deal, or challenging our provider or our retirement village over fees

We need to plan for this time by legally appointing a person we trust to carry out our wishes or even make decisions for us.

This person is called a decision maker. A decision maker can only act on our behalf if we have given them legal authority.

These legal authorities are;

• A Power of Attorney

• An Enduring Power of Attorney

• An Enduring Guardianship.

 I will give a brief overview of these legal documents, but you must find out all the detail, the fine print, the T’s & C’s and the legal argy-bargy from a trustworthy solicitor who practices in the area of elder law.

A very rough sketch:

A Power of Attorney (POA) will give another person legal authority to make financial decisions for them according to their instructions.

An Enduring Power of Attorney (EPOA) will give another person the legal authority to make decisions regarding finances and assets (and sometimes personal and lifestyle decisions according to your state/territory) after you have lost the capacity to make decisions for yourself.

An Enduring Guardianship (EG) will give another person the authority to act on your behalf regarding lifestyle and medical decisions.

HEADS UP #3:

If you are helping an elder appoint a decision-maker, these important points will help protect them from elder abuse.

1. They need to appoint someone they trust.

2. They can appoint more than one person, which can be a good idea.

3. They need to choose their own solicitor.

4. If you are the one appointed with powers of attorney, their solicitor should notbe your solicitor.

5. The solicitor should be someone who specialises in helping elders put these documents in place.

6. The solicitor needs to provide disclosure beforehand in an engagement letter explaining your elders’ rights and giving an estimated fee quote for work.

7. The solicitor needs to explain in detail what all documents mean.

8. The solicitor must talk to your elder about who they wish to appoint without the appointee being in the room. *

* I was in the room when my parents appointed me, and I found out later that it was not only unethical, but it is also a form of elder abuse. I could have been the bad family member who they were bullied by or frightened of. I could have coerced them into appointing me so I could sell their home, take all their money and move interstate. Believe me, it happens. I was a good daughter – in case you are wondering.

Public Trustees

If an elder does not wish to appoint someone they know to manage their financial and legal affairs, then they can ask the public or state trustees to manage them. This involves fees but may help to avoid family issues.

Public Guardians

If the elder has no-one reliable and trustworthy to make decisions for them (or has no family) they can ask for a public guardian to be appointed to make their personal and medical decisions. 

Putting in place all the legal documents is essential.

If your elder has a sudden unexpected medical emergency and there are no legal documents in place, this can cause difficulties in getting them the care they need in a timely manner. It can also make day-to-day necessities like paying for food and bills an additional stress for family.

If you don’t want to be asking your loved ones to sign legal documents when they are vulnerable and distressed in a hospital bed, then put them in place now.

Advanced Care Directive (AD)

At some time in the future a person may become too unwell to make decisions about medical care for themselves. It might be a gradual decline in health, or it might happen suddenly. To help in this situation you need to have in place an Advanced Care Directive. This is a legal document that expresses your wishes about what medical treatment you wish to receive if you become unable to express these wishes yourself.

This document is only used if you are too unwell to speak for yourself. It is important not only for you but takes great stress away from family and carers who may be asked to make decisions about your health care and who may not always agree with each other. It is so much better for everyone if they know what you wanted.

An Advanced Care Directive is a very important part of planning for the future.

How to help your elder prepare.

1. Get an Advanced Care Plan form from their GP. A good GP can help guide you both through their medical options and how to express their wishes. They can also help them express the ‘care outcomes’ that would or would not be acceptable.
2. Conversations about their hopes and fears, what they want and what they don’t want, should involve their family, friends and carers.
3. Nominate a specific person to express their wishes for them. This is their substitute decision maker. (see Enduring Guardianship)
4. Write down their wishes. Which will include treatment that is acceptable and unacceptable and where they would like to die, if possible. This document needs their signature and a witness and a date.

 This plan should be shared with their family, GP, specialists, local hospital, Enduring Guardian, ambulance service and any other healthcare providers who need to know their wishes.

A hard copy should be kept anywhere you keep important documents for an emergency.

It can also go your My Health Record.

The Will

A Will is another essential legal document. Without a Will there will be costs, confusion, chaos, lawyers, public trustees, delays and stress. A well-written and precise Will makes sure our elder’s wishes are followed and that the sorrow of losing a loved one does not include conflict over the Will.

HEADS UP #4:

Make sure your elder has:

•  a Will that was prepared by an experienced solicitor – someone who does a lot of wills. (Will kits can be fraught with danger).
• a Will that doesn’t contain any ‘bombs’. Nasty surprises for family members can permanently damage family relationships.
• has an appropriate executor or executors. (Consider their accountant as a co-executor).
• a will that is easy to locate. With their executor, solicitor or accountant is a good start.

HEADS UP #5:

Your goal is to make sure everything possible is in place to avoid chaos and uncertainty in a crisis. Helping your elder put in place all their legal documents will ensure their wishes can be carried out by the people they trust.

Have regular conversations about these wishes as they can change. Regularly reviewing these documents is a good idea.

Finally, you are doing an amazing and important job. You really do deserve a medal.

HEADS UP #6

I haven’t even talked about the advisability of getting professional financial advice. Every decision has a financial component, and our elders need to know exactly where they stand. I will do that next time. You have been warned.