Is there someone that you would trust wholeheartedly to make decisions for you? That person may be suitable for enduring powers of attorney, and here's why.
With the advances in medical treatment, life expectancy is increasing and mental illness, such as dementia, is on the rise. You need to think about how you wish your affairs to be dealt with if you lose decision making capacity. Losing the decision making capacity to make decisions can often happen unexpectedly, such as due to an accident or illness. Who will be responsible for keeping your financial affairs in order? Who will be responsible for consenting to your medical care and treatment? Who will decide where you will live? Is there someone that you would trust wholeheartedly to make these decisions for you?
You can consider appointing this trustworthy person to be your attorney under an Enduring Power of Attorney to make these sorts of decisions for you. This person can make all decisions concerning your personal, health and financial matters that directly affect you in the event that you cannot make those decisions.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney allows you (the “Principal”) to appoint people you trust (an “attorney”) to make decisions for you about “personal (including health) matters” and/or “financial matters”. This appointment continues when the Principal loses capacity to make those decisions for themselves.
If you have decision-making capacity, you can make your own decisions about personal, health and financial matters. At some point in the future, a situation may arise where you are unable to make your own decisions about these matters. An Enduring Power of Attorney allows you to appoint people you trust to make decisions for you if you are unable to.
What decisions can be made by an Attorney?
An attorney under an Enduring Power of Attorney can make decisions of the type and nature concerning:
Personal matters – this relates to decisions about your care and welfare such as where and with whom you live; support services you may need; whether you apply for a driver’s licence or permit; and day to day issues like diet and dress. Essentially, these decisions include legal matters which do not relate to your financial or property matters.
Health matters – are a personal matter and relate to decisions about your health care. Health care includes most medical treatments, procedures, and services to treat both physical and mental conditions. When you are nearing the end of your life, health care also includes treatments aimed at keeping you alive or delaying your death (life-sustaining treatments). Likewise, health care includes, your attorney(s) consenting to the withdrawal or the withholding of life-sustaining medical treatment if, for instance, you become terminally ill or go into a state of permanent or persistent unconsciousness.
You can also give instructions about these types of decisions (that is, the withdrawing or withholding of life-sustaining medical treatment) if you make an Advance Health Directive and these instructions will override any decision made by your attorney(s). However, you need to understand that an attorney(s) under an Enduring Power of Attorney does not have the legal power to make an Advance Health Directive for the Principal.
Financial matters – relate to decisions about your financial or property affairs, including decisions about paying expenses, making investments, selling property (including your home) or carrying on a business.
Who can make an Enduring Power of Attorney?
To make an Enduring Power of Attorney you must be at least 18 years old and have “capacity” to understand the document you are signing and the powers it gives. You must also be capable of making the Enduring Power of Attorney freely and voluntarily, not due to pressure from someone else.
“Capacity” is a legal term referring to the ability to exercise the decision-making process in relation to a matter. When an adult has capacity to make a certain decision, they are able to:
Understand the nature and effect of the decision about the matter
Freely and voluntarily make decisions about the matter
Communicate those decisions in some way
General Power of Attorney
A General Power of Attorney can only be made in relation to financial matters. If you give someone a General Power of Attorney, for instance, to sign documents for you in your absence, that power will come to an immediate end should you lose your capacity to make decisions for a financial matter.
Under a General Power of Attorney, you cannot appoint an attorney(s) for personal (including health) matters.
WHERE TO SOURCE HELP WITH ENDURING POWERS OF ATTORNEY
You need to give very careful consideration to the making of an Enduring Power of Attorney. An Enduring Power of Attorney is a very important legal document that can significantly affect your legal rights. It is always recommended that you choose your attorney very carefully and seek legal advice before committing 1 (or more) people to the designated role.
For further information on Enduring Powers of Attorney contact John and the team at JDS Lawyers today.