In South Australia there are two important documents you should have:
- An Enduring Power of Attorney (a financial power of attorney) is used to appoint someone to make financial and property decisions for you in the event that you are unable to make those decisions yourself.
- An Advance Care Directive (which replaces Medical Powers of Attorney and Powers of Guardianship as at 1 July 2014) is used to appoint person or persons to act as what is known as a substitute decision maker. There could be times in your life because of a short term accident or mental health episode or slowly over time (i.e. dementia) or a sudden stroke or illness placing you in a coma where someone needs to be in a position to make decisions about your health care, living arrangements or other personal matters. Wouldn’t it be better to have the people you want dealing with this not the Guardianship Board/Public trustee?
PLEASE NOTE that Medical Powers of Attorney and Powers of Guardianship validly entered into prior to 1 July 2014 remain valid and binding. You only need to make an Advance Care Directive if you don’t already have something in place or wish to change the terms of the appointment and/or people acting for you.
We can assist with advising you the best way to go and what is right for you. We will draft them for you and witness your signature and arrange for persons appointed by you to sign. A one stop shop!
FREQUENTLY ASKED QUESTIONS
What are they?
An enduring power of attorney should not be confused with a Will. A Will covers the situation in the event of your death and gives directions to your executors to distribute your estate according to your wishes. An Enduring Power of Attorney is to cover those situations where you are not dead, but for some reason or other you do not wish to, or are unable to, manage your own financial affairs.
This document will allow a person or persons nominated by you to act on your behalf. There are two different types that you can make, one in which the person or persons you appoint can exercise that power at any time should they feel it necessary to do so or another in which they may only exercise that power upon proof that you are no longer legally competent to do so yourself (as certified by your Doctor, for example).
The Advance Care Directive basically is a document where you can set out what person or persons will have the power and authority to make decisions of your behalf and will cover things such as:-
- Health care (this can include medical treatment, surgery, medications, nursing care, dental treatment, podiatry, physiotherapy, mental health treatment, optometry, psychological therapy, emergency care, occupational therapy and other services provided by health practitioners such as alternative therapies
- Residential and accommodation decisions which can include where you wish to live, whether to go into supported care, whether you prefer to have a view of the garden, live by the sea, live with others or on your own
- Personal decisions – this can be about your pets, holidays, employment, personal grooming, relationships that are important to you and many other things.
Who can make a Power of Attorney or Advance Care Directive?
Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the decisions in the document of their own free will and who can communicate clearly what those decisions are.
When should I make a Power of Attorney & Advance Care Directive?
Before you need them! These documents safeguard your interests in the event of something unforeseen – an accident or illness that robs you of your capacity to make decisions for yourself. It is better to be prepared and confident in knowing that the person you choose will be making important decisions about your money, your living arrangements and your health. So many times we are contacted by family members once Mum or Dad or Gran has had a stroke, been diagnosed with Dementia. Often by then it’s too late-ACT BEFORE THE HORSE HAS BOLTED!
When does it start?
For a financial Power of Attorney it begins when you nominate that it should.
The Advance Care Directive only commences when you are unable to make your own decisions.
You can make your own decisions if you can:-
- Understand information about the decision
- Understand and appreciate the risks and benefits of the choices
- Remember the information for a short time
- Tell someone what the decision is and why you have made the decision
If, in the future, you are unable to do those four things it means you are unable to make the decision and someone else will need to make the decision for you.
Who should I appoint to be my Attorney or Substitute Decision Maker ?
You need to appoint someone your trust to make the right decisions. With an Advance Care Directive, your substitute Decision Maker cannot be directly or indirectly involved in your medical care or treatment. So it can’t be your Doctor.
What are the legal responsibilities of my Attorney or Substitute Decision Maker?
They are legally responsible to you and must act in your best interests. While you have mental capacity they must obey your instructions. They cannot give gifts to themselves or to anyone else unless you specifically authorise this and they must keep their finances and money separate from yours, keeping accurate records of all of their dealings with your money.
Who should I talk to about it?
It’s really important that you discuss these documents with us as we can give you professional advice about your particular circumstances. It’s also vital that you discuss your wishes with your family to avoid unnecessary conflict and stress.
Do I need a witness?
Yes, these documents need to be witnessed by a person with statutory authority such as a solicitor or Notary Public (Mr Thiele is both) or by a Justice of the Peace (Sharon Honner from our office is a JP).
Can I change my mind?
Yes, as long as you still have the decision making capacity to do so you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.
Perhaps you have another question we have not thought of? Ask us we are happy to oblige.