Power of Attorney & Enduring Guardianship: When to Act?
© Danielle Robertson Consulting Pty Ltd t/as DR Care Solutions
Whilst proactively managing the ageing process, it is important to ensure that all legal, financial and health matters are considered and catered for your loved one. One of the most difficult decisions of supporting a loved one in their ageing is making the decision of when to enforce the Power of Attorney or Enduring Guardianship. Enforcing these agreements can be difficult on the individual due to the loss of perceived control or difficult amongst family members and other decision makers.
Power of Attorney:
“Appointing an attorney gives your attorney the legal authority to look after your financial affairs on your behalf. You can appoint an attorney to act for you in a variety of circumstances such as an extended interstate or overseas trip, or for a time when you are no longer able to manage your own affairs.”
“An Enduring Guardian is someone you appoint to make lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. Your Enduring Guardian may make decisions such as where you live, what services are provided to you at home and what medical treatment you receive. Enduring Guardianship only comes into effect if or when you lose capacity and will only be effective during the period of incapacity...”
These two legal documents provide for an appointed person to step in to manage the client’s financial and health affairs when they are no longer in a position to do so. The point of when the decision-making powers transfers is often a point of contention for the family members and client. Legally the point of transfer is determined by when the individual has lost capacity. This point is finalised when the client’s general practitioner has assessed the client and provides a certificate to state that it is time to implement an agreement. Family members, friends and guardians do not have the authority to declare an individual has lost capacity, it must be declared by their client’s general practitioner.
Once the ageing journey has begun and care options are being explored, it is important to start thinking about options and plan for a Power of Attorney and Enduring Guardianship. This will prevent confusion, stress and disagreement in the future.
By exploring the options and discussing scenarios long before they occur, it is possible to review and document an individual’s preferences, (ie: their wants and wishes) thereby reducing disagreement amongst decision makers later on.
Here are a few items to consider, discuss and document:
- Preference for care (home care or residential or another option).
- Preferences for carers (e.g. Gender when considering intimate services such as showering and toileting, language requirements etc).
- Medical care requirements and preferences for care settings and processes.
- Financial arrangements for services, Medical and care requirements.
- Preferences for location for living arrangements.
- Processes for emergency plans.
For more information, please see your solicitor, Estate Planner or visit NSW Trustee and Guardian.
For discussions around planning for different care options and solutions available to suit your loved ones needs, please feel free to contact Danielle Robertson, DR Care Solutions.