Do I need an Enduring Power of Attorney, Enduring Power of Guardianship, or Advance Health Directive (“Living Will”)?
Unfortunately, nowadays it is not uncommon for people to lose legal capacity as a result of:
- Dementia
- Alzheimer’s Disease
- Mental illness
- Stroke
- Accident
- Trauma
When a person loses legal capacity, they are not able to manage their affairs, understand the nature and effect of legal documents, and make decisions about their affairs and health.
A person is able to appoint another person or persons to look after their financial affairs (EPA) or health issues (EPG) in these circumstances.
By appointing another person to look after their financial affairs or health issues, you are ensuring that these matters are looked at by a trusted and caring person.
An AHD is a legal document that enables you to set out your instructions in relation to health matters, such as withdrawal of life support systems and palliative care. An AHD takes priority over an EPG.
An EPA grants a person the power to make decisions on your behalf. The types of legal and financial decisions that the person can make include:
- Dealing with your money
- Paying your bills
- Dealing with your investments
- Buying or selling real estate on your behalf
An EPG gives a person the power to make decisions about another person’s medical treatment and lifestyle. The person who is granted the power is usually a close friend or loved one of the person that donated the power.
- Medical treatment, including decisions about stopping your life support system
- Where you will live, and with whom (at your home or in a care facility, alone or with a carer)
- Whether you will receive critical medical treatment, or not
- Decide what sorts of support services you receive
- Decide whether you will commence, defend, settle, or conclude legal proceedings
An AHD enables you to make medical treatment decisions (“directives”) in a written document. If you lose legal capacity, the Living Will directs your medical staff what, if any, treatment you should be given. You can direct your medical staff to turn off your life support systems, for example.
A living will is restricted to making decisions about your medical treatment, and only becomes active if you lose legal capacity.
Your loved ones will need to make an application to the Guardianship Board (through the State Administrative Tribunal) to appoint an Administrator for financial matters, and a Guardian for health and lifestyle issues. To do this, the Applicant needs to produce evidence of your legal incapacity. Medical reports are commonly used as supporting evidence.
The process can take some time, and during that time it may be difficult for your loved ones to make certain decisions, such as medical treatment, on your behalf. They will not be able to deal with financial matters until the appointment is made.
Mossenson’s can advise you and prepare these documents for you, as well as act for you in relation to making the application to SAT.
