Everyone hopes there’s never a need to rely on someone else to make decisions about your health or finances while ageing. Many people have also never thought about who could help them with life or financial decisions if they cannot do this themselves because of illness or cognitive decline.
Research shows that roughly half of people aged 65 or over have an enduring power of attorney in place. Another 15% have had conversations about making a power of attorney but are yet to legally nominate one.
While this is a good sign that many people recognise the importance of attorneys, there’s room for growth in regard to understanding what an attorney does and how an individual’s rights should still be promoted when an attorney is nominated or active.
Attorneys play a central role in the decision-making process for older people who can no longer manage their affairs independently. Whether it’s because of cognitive decline, a major accident or serious illness, anyone might have to appoint someone to make decisions during their later years.
An attorney can be nominated under an Enduring Power of Attorney (EPOA). This is an essential document to have in place well before you become ill or lose the capacity to make decisions as you are not legally allowed to organise one once you lose capacity. If there is any doubt about a person’s capacity or ability, a capacity assessment may be conducted.
Appointing an attorney can help you ensure that the decisions made regarding your finances and care are always yours no matter what, even if family or friends disagree. You can choose someone to manage both your financial and personal matters, or just one of the two.
Since attorneys hold a trusted position when someone has been assessed as having impaired capacity, it’s best to nominate a person you know and trust. Most attorneys are adult children or partners, while siblings, cousins, friends or even a separate service provider such as a public trustee can be nominated.
There are different laws in each State and Territory on what your EPOA allows. In some States, an attorney can only be granted permission for financial decision-making with an Advance Care Directive or Enduring Power of Guardianship required for lifestyle or medical matters.
If you are unsure about local laws, you can seek advice from a lawyer or speak to an aged care advocate for non-legal support.
No matter the laws, one thing is essential: the person you choose as your attorney has to include and support you in decision-making.
Appointing an attorney does not take away your ability to make decisions, it just means someone is helping you or making a decision aligned with your wishes when you cannot. Even someone impacted by cognitive decline still has the right to be involved in conversations about how money is spent, activities they participate in and all other personal matters. This is known as supported decision-making.
All decisions made by an attorney should be made through a supported decision-making process. If you’re unsure what this entails, ADA Australia’s Supported Decision Making Guide outlines the decisions that might need to be made. It is a handy guide for older people, carers, family and aged care staff.
Regardless of the specific decision, it is the responsibility of attorneys to include the person and support their decision-making abilities. This might mean you need multiple conversations with someone if their cognitive capacity fluctuates to ensure you make the best possible choice.
Sometimes an attorney will go against a person’s wishes. They may not include a person in the decision-making process, resulting in financial or healthcare-related decisions that are made to benefit them, for example.
If you are experiencing these problems, you or someone else you trust can contact an aged care advocate for help and support.
If you have been nominated as an attorney for a family member or friend there are duties and obligations to be aware of.
It’s important to first familiarise yourself with the EPOA document. This will explain what areas you have been appointed as a decision maker for (financial and/or personal), any limitations placed on your role and when your authority takes effect.
Always talk to the person you’re representing. While their EPOA may outline certain things, their choices and wishes matter the most. You are their conduit and understanding what they would or would not want to do in certain circumstances will help achieve the best outcomes. Your role is to keep them informed and supported so they are aware of any changes.
Be sure to uphold their decision. This is arguably the toughest part of the job, especially if you disagree with certain choices. However, being a good attorney means maintaining a human rights focus. Individuals in aged care still have the same rights and freedoms as their peers in the community.
If you struggle with any decisions and don’t know what to do, ADA Australia can provide support and advice on 1800 700 600.
Aged care providers, including staff supporting residents, have their own rights and responsibilities to be aware of.
Aged care providers should not just assume powers of attorney are enacted. The Enduring Powers of Attorney document must be reviewed to confirm the following:
There is also a responsibility to keep the person involved. For example, staff should ask the person first about day-to-day decisions. An attorney should only be involved if you think the decision is outside the person’s capacity or if loss of capacity is confirmed. Even then, avoid only speaking with an attorney and do not ignore the resident.
If you notice a resident is not being listened to or the supported decision-making process is not taking place you can refer them to contact an advocacy organisation such as ADA Australia.
These services are free, independent and confidential, and they can assist attorneys and older people in achieving the best possible outcome.
The information provided in this article is general in nature as Enduring Power of Attorney laws and mechanisms differ in each State or Territory. If you have any questions or concerns about your rights or another person’s, free advocacy services are available via 1800 700 600.
