Keep it Legal

Jean Kittson

Article by 

Jean Kittson

Decision makers

For most people, there will come a time when we are unwilling or unable to manage our financial and personal affairs.

Maybe we become confused by a water bill or a rate notice. Or we may not be able to understand our Home Care Package bill, which is the most confusing of them all and might as well be written in Klingon. Or perhaps we just need someone else to go to the bank for us and change our account from one that is paying .0% interest to one with a better deal, .05% for example.

Or maybe something more alarming might happen, a sudden ‘medical event’ – and I don’t mean an awards night – I mean a stroke, or a fall, or a heart attack, after which we may not have the capacity to do the things we once did and we need help.

Whatever the reason and whatever the age, we all need to plan for this possibility by legally appointing a person we trust to carry out our wishes or even make decisions for us.

This person is sensibly called a ‘decision maker’.

And to enable this decision maker to legally help us and do the things we want and need them to do requires forms. And I mean forms. Many of these forms are available online on government websites and are often called ‘planning ahead documents’. Surprisingly, some of these forms are quite simple. However all of them require legal advice.

I know as soon as you read legal advice you think $$$ but believe me, in the long run, it will save you (and your loved ones) not only money but also anguish. And keep in mind that a good solicitor, who does a lot of this type of thing, should not charge much.

And if you or your loved one chooses to put all these forms in place, which is recommended, get them done in one whack and it should save some money.

Let me begin by explaining the different types of decisions makers.

  1. Power of Attorney (POA)

This is a legal document that allows you to appoint another person(s) to manage financial and legal decisions on your behalf, only while you have the ability (capacity*) to make decisions for yourself. In other words, they can only make decisions on your behalf if you have instructed them to and they are in your best interests not theirs.

2. Enduring Power of Attorney (EPOA)

This is a legal document that allows you to appoint a person(s) to manage legal and financial decisions on your behalf and that person can continue to make those decisions even if you have lost the capacity* to make decisions for yourself.

3. Enduring Guardian (EG)

This will give another person the authority to act on your behalf in the areas you have outlined and may include where you live and the services you receive, also healthcare, medical and dental decisions.

What an Enduring Guardian can do depends on what areas you have outlined and differs from state to state so please get professional advice.

What Enduring Guardians can’t do is;

-Make a will for your elder.

-Vote on your elder’s behalf

-Consent to marriage on your elder’s behalf.

-Manage their finances or assets

-Override their objections to medical treatment.

An enduring guardianship takes effect only if your elder loses capacity* and becomes unable to make their own medical or lifestyle decisions.

*I will explain ‘capacity’ in a minute because it is an important medical and legal term that we need to understand.

Appointing a Decision Maker.

One of the most important considerations when appointing a decision maker is trust. Who do you trust to always act either under your instructions or with your best interests at heart?

You can appoint more than one decision maker. One can be a trusted family member or friend, the other a professional – your accountant perhaps.

You can specify if you want them to act together (jointly) or independently of each other (severally) (this is a legal term).

If only one person is appointed it is a good idea to have a substitute decision maker, just in case.

Although I have used the titles; POA, EPOA and EG, I want to make it clear that every State and Territory uses its own special and unique name just to keep it simple – NOT. For example, some states call a Power of Attorney, a Non-Enduring Power of Attorney. I believe in Victoria it is called a Supportive Attorney. An Enduring Guardian in one state is called an ‘Enduring Power of Attorney for Medical Decisions’ in another state.

Another reason to please seek legal advice.

Public Trustees

If an elder does not wish to appoint someone they know to manage their financial affairs then they can ask the public or state trustees to manage them. This involves fees but may help to avoid family issues, such as fights at Christmas dinners and accusations of sucking up and favoritism and an all-in brawl at the reading of the will, when the elder cannot enjoy it in person.

Public Guardians

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

Capacity

Which brings us back to “capacity,” which is something you need to know about.

Capacity is important when it comes to legal documents. Capacity is a term that refers to your mental ability to make decisions. Including the decision to appoint a decision maker. Capacity is often something that we only start thinking about when family become concerned about their loved one’s ability to function sensibly or reasonably. Whether or not someone has ‘capacity’ is often associated with dementia. But please be careful and controlled when considering the idea of capacity and incapacity. ‘Incapacity’ can sometimes be used as a means of gaining control over vulnerable elders, by selling their homes and moving them into residential aged care, for one distressing and not uncommon example. It is important to remember, as an eminent geriatrician told me, ‘Capacity is very nuanced, and depends on a lot of factors. Just because your elder may not be able to decide what they want for dinner, doesn’t mean they can’t decide where they want to live.” Well said. Noted. A specialist geriatrician is best placed to make that call.

A solicitor will also need to know if a person has the capacity to sign legal documents. If it is decided, by a specialist geriatrician, (not a family member or the local shopkeeper or even a family member’s GP,) that they do not have the capacity to make decisions about who to trust, then it is illegal for them to put in place or sign any legal documents.

That is why it is so very important to make decisions about your preferred decision maker before anyone starts questioning our ‘capacity’ to make decisions, because then it could be too late.

And if you haven’t appointed an Enduring Power of Attorney or an Enduring guardian then any guardian decisions can be made on your behalf by a substitute decision maker, known as ‘the person responsible’ who can be virtually ANY family member. No matter how far removed. Just for a moment, you might like to ponder your own private worst-case-scenario person deciding what medical attention you receive and where you are going to live.

For the loving family member it is also very important that your elder has these legal documents in place because otherwise you may have to do it in a crisis.

Take my friend Josie; she kept putting off getting her reluctant mum to put in place powers of attorney because she didn’t want to rush things, she didn’t want to be pushy but then suddenly and sadly the mum had a stroke. Josie found she couldn’t go to the bank or authorise bill payments or do all the things that needed to be done on her mum’s behalf without legal authority. So, she had to ask the solicitor to visit her mum in hospital and in her words, ‘I felt like a vampire, asking the solicitor to come to her bedside in hospital, like some horrible character in a movie saying, “sign here, quick sign here.”

These can be difficult discussions to have and decisions to reach, but they are essential.

This requires conversations with your elders about their thoughts and wishes, their hopes and fears.

There will be many conversations about difficult topics, but please reassure your loved one that these conversations about putting in place legal documents will give them more independence and control over their lives, not less.

(I will talk about an Advanced Care Directive and a Will in the next issue of this magazine.)

TOP TIPS

There are important things that should happen if you are helping an elder to appoint a decision maker.

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 being appointed powers of attorney, it should not be 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 the elder about who they wish to appoint without the appointee being in the room.

Jean Kittson AM is an Australian performer, writer and comedian in theatre and print, on radio and television.

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