Legal issues - sorting them out early on
It can be very awkward giving financial advice or talking about legal issues with an ageing parent or family member. However, delaying these discussions can lead to major repercussions in the future.
In this article:
- Planning for the future
- Enduring Guardianship
- Enduring Power of Attorney
- Guardianship Board
- Advanced Care Directive
- Making a will
- Useful links & helpful phone numbers
Planning for the future
No one likes to discuss the subject of what will happen if they become mentally incapacitated, but many people lose their ability to make decisions for themselves everyday. It may be due to illness, an accident or dementia.
Ensuring all the necessary arrangements are in order before a crisis occurs alleviates any uncertainty and potential family conflict. If a person wants to make sure that their plans regarding any medical or financial issues are followed should they become ill, they need to appoint an enduring power of attorney and an enduring guardian whilst they are legally competent to do so.
If you are caring for someone with dementia, encourage them to think about how they would like their affairs to be handled as soon as possible. This may feel uncomfortable. However, talking the issues through early on is the only way to ensure a person's wishes are fulfilled in the future.
Don't forget to organise your own affairs in case something happens to you.
Enduring Guardianship
An enduring guardian is a person you elect to make decisions regarding personal, lifestyle and medical matters on your behalf should you lose the capacity to make your own decisions.
An enduring guardian only comes into effect when you lose capacity.
An enduring guardian can help make personal decisions such as:
- Where a person should live, consent to enter a hostel or aged care facility
- Who can visit and associate with a person
- Which doctor treats a person
- What medications, treatments such as dental work should be carried out
- Whether a person can go on holiday and who with
An enduring guardian cannot manage someone's finances, make a will for a person or override any medical choices.
Enduring Power of Attorney
A power of attorney is a legal document that gives a chosen person the authority to manage property and financial affairs and sign documents on a person's behalf. For instance if the person you care for is unable to sign documents or pay bills due to loss of vision, by organising power of attorney, you can act on their behalf.
A person can elect which financial matters they would like the power of attorney to attend such as:
- Operating a bank account
- Selling a house for a specified sum
- Managing business affairs
- Pay bills
A power of attorney takes effect as soon as the document is signed. If a person loses capacity the power of attorney ceases to have any effect.
An enduring power of attorney needs to be organised to ensure that a person elected can continue to make decisions on a person's behalf should they become mentally incapacitated or of unsound mind.
Guardianship Board
If there is disagreement with the way an enduring guardian is handling a person's affairs or someone is worried about the acts of an enduring guardian, they can apply to the guardianship tribunal for a review of the person's appointment of guardianship.
A guardian can also be appointed on someone's behalf by the guardianship tribunal if there is a conflict of interest, an absence of family members, an emergency or the person cannot make a decision for themselves.
Each state and territory has its own guardianship board and legislation will change between states. The guardianship board or tribunal is then responsible for supervising the person's affairs.
Advanced Care Directive
An advanced care directive or "living will" is a document that states a person's wishes and preferences regarding future medical care should they become unable to communicate or make decisions for themselves.
An advanced care directive is a way of recording a person's wishes ahead of time.
An advanced care directive can include directions concerning:
- Medical treatment preferences such as whether they would like to be on a ventilator, permission to be tube fed or instructions regarding invasive procedures
- Use of pain medication and extent of medical treatment if condition is terminal
- Who to talk to as a substitute decision maker (enduring guardian)
- Cultural and spiritual preferences
- Measures to prolong life
- Donation of organs
- Guidelines regarding (NFR) not for resuscitation orders
- Use of antibiotic therapy
Although it is difficult, it can help to talk over end of life issues with family. An advanced care directive needs to be formulated with a doctor and a witness.
Family members will find it easier to make treatment decisions on a person's behalf when they have a prior understanding of a loved one's preferences, values and thoughts on what constitutes quality of life.
It is a good idea for an advanced care directive to be kept in a known spot. Ensure a person's doctor has a copy.
Making a will
A will allows a person to decide how they would like their estate to be distributed should they die. It is a good idea to ensure that a person has a legal and up to date will with clear instructions on how they would like their assets to be divided.
Find out who the executor of a family member's will is and know where the will is kept. A person with dementia needs to make sure they have a legal will drawn up before they lose capacity.
Managing legal and financial affairs can be made easier by keeping all legal documents in a safe place. Family members need to know where to find their parent's will and other important documents.
Other documents may include:
- Birth and death certificates
- Insurance policies
- Funeral arrangements
- Bank account details
- Property deeds
- Investments and debts
Make copies of important documents such as wills, enduring power of attorney and advanced care directives. Inform people you trust of the whereabouts of important documents and make sure they are secure. Talk to a solicitor or The Public Trustee for more information.
Useful links & helpful phone numbers
Advanced Care Directive Association
For information about making An Advanced Care Directive ring 0423 157 003.
The Guardianship Tribunal
For information regarding enduring guardianship.
Toll free: 1800 463928
Main switch: (02) 9556 7600
NSW Trustee and Guardian
Provides information regarding wills and attorney services.
Tel: 1300 364 103
Alzheimer's Australia
For fact sheets about dementia and legal issues.
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