© Danielle Robertson Consulting Pty Ltd t/as DR Care Solutions
In the COVID-19 climate, it is critical that everyone, particularly older Australians, have in place four legal documents:
- A will,
- An Enduring Power of Attorney,
- An Enduring Guardianship, anda
- An Advance Care Directive (also known as an 'Advance Health Care Directive' or 'Advance Health Directive' in some States / Territories).
You can only have these documents drawn up while you have mental capacity. On losing your mental capacity, those close to you will face the trauma of going through government administrative and court processes to obtain authority to manage your financial affairs and make health decisions on your behalf.
At DR Care Solutions, we are familiar with the trauma involved; see our recent case study of a client's experience .
If you already have these documents in place, it is a good time to check they remain valid and that the person or persons to whom you have given authority have certified copies of the documents to hand.
Glossary of Terms
To better understand the role of each document, below is a brief definition of each. Be aware that each Australian State and Territory has its own legislation for Powers of Attorney, appointments of Enduring Guardianship, and Advance Care Directives and, as a result, different forms of documentation.
A will is the legal instrument that permits a person, the testator, to make decisions on how an estate will be managed and distributed after death.
Powers of Attorney
Power of Attorney: A Power of Attorney is a legal document enabling you to appoint a person (or people) to be your Attorney. The document gives your Attorney the power to manage your financial affairs and assets on your behalf. This may include managing your bank accounts, paying bills from those accounts or selling assets such as property or shares.
A general Power of Attorney ceases to have effect after you lose the mental capacity to make financial decisions. This role is given to an Attorney appointed under an Enduring Power of Attorney.
Enduring Power of Attorney: An Enduring Power of Attorney enables your attorney to continue to manage your financial affairs and assets in the event that you lose mental capacity, for example, if you develop dementia, have a stroke or sustain a brain injury in a car accident. The power given to your Attorney, in effect, endures.
Please note that an Attorney under an Enduring Power of Attorney cannot make lifestyle, health, accommodation and medical decisions on your behalf. This role is given to an Enduring Guardian.
An Enduring Guardian document enables you to appoint a person (or people) to make lifestyle, health, accommodation and medical decisions for you when you lose the mental capacity to do so. Your Enduring Guardian may make decisions such as where you live, what services are provided to you at home, and consents to medical treatment for you.
Advance Care Directive
An Advance Care Directive is a document that states your wishes or directions regarding your future health care for various medical conditions. It comes into effect only if you are unable to make your own decisions. Through it, you can also appoint a substitute decision-maker for personal and health matters when you can no longer make decisions yourself. Often this is called a ‘living will’.
Please be aware that my comments in this blog are given as guidance only and are no substitute for professional legal advice.
To safeguard your future care wishes and financial affairs, and to help those close to you, speak with your solicitor about arranging a will, an Enduring Power of Attorney, Enduring Guardianship and an Advance Care Directive.
These are all essential tools for your care plan. For further background reading, refer to the Federal Government's My Aged Care website.
Remember, when to comes to finding care solutions, please feel free to contact me, Danielle Robertson at DR Care Solutions, for an initial discussion on how to set up the right care, support and assistance for your loved one, at the right time and in the right place.