• Jenni Perkins

The peril of not having an enduring power of attorney

Planning for the future includes making provision for the possibility of reduced decision-making capacity, be it the result of cognitive decline, the onset of dementia, or incapacitation due to illness or accident.

Forward planning, and putting in place appropriate legal provisions can help ensure your wishes are understood and decisions about your care, finances and how you live are made by people that you trust.

An enduring power of attorney enables you to appoint one or two trusted people to make financial decisions on your behalf should you become incapacitated. This allows the appointed person or people of your choice to access your bank accounts; pay bills and undertake property transactions on your behalf.

An enduring power of attorney relates to financial decisions only – an enduring power of guardianship enables you to appoint someone to make personal, lifestyle and treatment decisions on your behalf if you lose capacity to make these decisions yourself. This can include decisions about where you live, the support services that you receive or who provides care to you.

An advance health directive enables you to make decisions about your health care in advance, should you ever lose capacity to make decisions about treatment.

In circumstances where a person has reduced decision making capacity but has not put in place an enduring power of attorney then an application can be made to the State Administrative Tribunal to appoint an approved administrator to manage your finances.

Recently I have learnt the hard way the perils of not having in place provision for enduring power of attorney and guardianship.

My older brother at age 72 had a massive stroke, leaving him with significant disability. With my other two brothers and myself being the only family (and none of us living in the same state) we immediately came face to face with the challenge of putting in place an enduring power of attorney and guardianship so we could manage my brother’s affairs on his behalf.

This has proved very challenging and has involved multiple attempts to have a solicitor visit the hospital to obtain the relevant approvals at the bedside. The alternative is to seek guardianship through the NSW legal process, which could take at least four weeks.

In the meantime decisions are required to help manage my brother’s affairs and his future care. We have no authority, for example, to complete the Centrelink income assessment form required for residential aged care; to arrange for my brother’s mail to be redirected; or access my brother’s bank account to pay his bills.

The moral of the story – start planning early and put in place provisions for your future care with people that you trust in case you are not able to make your own decisions.

Make sure that you not only have an up to date will in place, but also arrangements for enduring power of attorney, guardianship and advance health directive, according to the state law in your state of residence.

Having these in place can help ensure better outcomes for you and save a lot of angst for those who are trying to look after you.

Go to Live Well Longer free resource ‘Enduring Power of Attorney and other Decision-Making Provisions’.

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