There may be a time when some of us will not be able to look after all our needs or may be the important ones.
This may be because we may become physically unable to do so, or perhaps, not mentally capable of managing our affairs. But if we don’t do it who will?
General Power of Attorney
Although with net banking these days the need to go to a bank for money, for most of us is a thing of the past. Even if we are overseas we can still access all of the online companies we deal with when we are home. We can shop, pay bills, even order meals without getting out of bed. So why would we need a power of attorney?
For those that don’t have a computer or do not care to use one they may have a problem. A power of attorney will help to solve it. Once you lose your ability to type or speak the use of a computer would be doubtful. If there is a loss of mental capacity the result is obvious.
- A power of attorney is a document that you can create, to authorize someone you trust to do things of a financial and administrative nature for you.
- You can allow them to do everything from accessing your bank accounts, paying bills and talking to government agencies.
- Unless you place restrictions on the power, the person receiving your authority, your attorney, can do everything that you would do for yourself.
A power of attorney can be for a specific period of time to commence upon your attorney signing his or her acceptance, or to be until you revoke it. If you don’t want it used for the time being just keep it in safe keeping until the need arises.
Enduring Power of Attorney
If your concern is mostly to protect your interests in the event that in the future you will be unable to make decisions for yourself in a financial sense because you could lose your mental capacity to understand what you are doing, then your option is an Enduring Power of Attorney.
- This type of attorney document will require a clause and certificate certifying that you understand the significance and effect of making the enduring power of attorney that you intend to enter into. Upon you losing capacity the enduring power will take effect.
- Once you lose capacity you cannot enter into an enduring power of attorney.
If you are in aged care or hospital and / or there is a possibility that a doubt will be raised by one of your children (or others) as to your capacity to enter into the enduring power of attorney, it is advisable and in your interest, to ask your doctor to give you a doctors certificate to give to your solicitor setting out his opinion as to your understanding of the significance and effect of making an enduring power of attorney.
You will be our client. We will need to consult with you either at our office at which we have ground floor space and a disability toilet facility if required or we can make arrangements to visit you.
What Is It?
An enduring power of guardianship allows you to appoint someone to make decisions about your:
- and medical choices in your place.
This will include:
- a decision as to where you will live,
- who you will live with,
- if necessary, restrict visitors if not in your interest
- and make decisions about your medical and dental needs.
This enduring power will come into effect once you have lost the capacity to make these types of decisions for yourself. You can revoke it at any time but not after you lose legal capacity.
In the absence of an enduring guardianship your carer would need to get an appointment to be your legal guardian from the Guardianship Tribunal.
If you wish to appoint a guardian a solicitors certificate will be required which will state that you and the proposed guardian have signed the document freely and voluntarily and that they have understood the effect of the enduring power of guardianship.
If the guardian does not act in your best interests the Tribunal can make an order revoking the power.
There is a presumption of capacity, whereby an adult “is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted”.
“A person may make an “advance care directive”: a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.”(See Hunter and New England Area Health Service v A  NSWSC 761)
Some of us due to a medical condition that renders our lives futile would not not wish to be revived from that state and would prefer to die a natural death.
Seeing a loved one unconscious in a hospital bed with the doctors assuring that the person will not have any quality of life should they regain consciousness would be very upsetting Some considerations to think about:
- What would the patient want?
- What would you want?
An advanced medical directive gives you the chance to express your wish.
Assuming that whilst the person was in that state, suffers a seizure or heart attack, would they want the doctors to interfere and attempt resuscitation? Or would they just want to be let go?
In the event that circumstances occur whereby you became unconscious and offered treatment which merely preserved your permanent unconsciousness or could not end total dependence on intensive medical care, would you want that treatment if is was regarded as non-beneficial and considered futile?
If the answer is “No” then you should think about an advance medical directive as a means of expressing your wishes.