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Who would make your financial, medical andlifestyle decisions if you couldn’t?Considerations for appointing aPower of attorneypower of attorney is a documentA that authorises another person tomake decisions on your behalf. This canassist you when you are temporarily orpermanently unable to manage your ownaffairs.It is worthwhile thinking aboutappointing an attorney now while youare still of sound mind and able to do so,particularly if you have been diagnosedwith a serious illness or are about tohave major surgery.You are the only person who has theright to make decisions about your assetsand if you are ever unable to manageyour own financial affairs – for whateverreason – your assets will be effectivelyfrozen unless you have previouslyauthorised another person to look afteryour finances on your behalf by signinga power of attorney, or another personapplies to the relevant board, courtor tribunal in your state for an orderallowing him or her to handle yourfinancial affairs.Appointing an attorney enables youto have someone you trust manage youraffairs and make decisions on yourbehalf should you be unable to do so.Choosing an attorneyThe only legal requirement is thatthe person you choose to act as yourattorney is over a certain age specified inthe legislation (e.g. 18 in Victoria) and ismentally competent. Often an attorneywill be a relative, close friend or anindependent person such as a lawyer,accountant or an employee of a trusteecompany.Keeping in mind the following points,choose a person who:• is trustworthy.• does not have a conflict of interestthat would make it impossible to actin your best interests.• knows you and understands yourwishes e.g. Is there any medicaltreatment you would not want? Somepeople write down their wishes toavoid conflict at a later date.• can do the job. The person youappoint to make financial decisionsmay not be the same person youwould want to make lifestyle ormedical decisions on your behalf.If your State/Territory legislationallows, you can choose more than oneattorney. While two attorneys mightdisagree about the decision to be made,two attorneys can be handy if one islikely to be away a lot or you don’tcompletely trust one to make decisionsalone.If, for some reason you are unhappywith your attorney, the power of attorneycan be cancelled and you can appointsomeone else.Types of powers of attorneyThere are different types of powersof attorney each designed to coverdifferent situations and different typesof decisions: temporary and permanentsituations, and personal, lifestyle,financial, legal and medical decisions.• General power of attorney• Enduring power of attorney(financial)• Enduring power of attorney (medical)(not in all States/Territories)• Enduring power of guardianshipWhich powers do I need?The powers you need will depend onyour wishes, and your personal, financialand family circumstances. Providedthe legal requirements are met, you canmake whichever powers you wish, andyou can appoint whoever you wish totake on those powers. For example, youmay choose to make only an enduringmedical power of attorney, or you maychoose to make all three enduringpowers of guardianship and attorney.Similarly, you may choose to appointonly one person for all the powers youmake, or you may choose differentpeople for each of the powers you make.In deciding which powers you want tomake, take note of the type of decisioncovered by each document.However, it is important to note thatthere is potential overlap between anenduring power of guardianship and anenduring power of attorney (medical) inrelation to medical decisions, becauseboth have the power to make medicaldecisions. However, in practice, aguardian can make medical decisionsonly if there is no medical attorney. Ifa medical attorney has been appointed,their decisions take precedence overthose of the guardian.General power of attorneyA general power of attorney is a legaldocument that authorises another personto manage your legal and financialaffairs on your behalf and can take effectfor a specified time only, or it can beindefinitely.The powers given to the attorneycan be as extensive or as restrictive asyou choose. For example, they can beresponsible for all your financial andlegal transactions including sellingyour house, or they can be responsiblefor only some, such as writing chequesand paying bills or signing a particulardocument.However if you become incapableof providing your attorney with clearinstructions this document automaticallybecomes invalid.28 THE EPILEPSY REPORT MAY 2008
Enduring power of attorney(financial)An enduring power of attorney(financial) is a legal document thatauthorises another person to makefinancial and legal decisions on yourbehalf. It takes effect from whatevertime you nominate: immediately, on aspecific date, or if you so specify, whenyou become mentally incapacitated.The powers given to your attorneycan be as extensive or as restrictiveas you choose. For example, they maybe responsible for all your financialand legal transactions, or they maybe responsible for only some, such aswriting cheques and paying bills.The enduring power of attorney(financial) can also be used fortemporary circumstances, such as a stayin hospital or a trip overseas. However,because it is enduring, it will alsoautomatically take effect if and whenyou become permanently incapacitated.Financial attorneys are legally obliged• to act in your best interests at alltimes• to keep their property separate fromyours, except when the property isjointly owned• to keep accurate records of alldealings and transactions• to follow any specific instructionsset out in the power of attorneydocument• to maintain confidentiality.You can specify the principles andphilosophy that should underpin theway your financial affairs are managed.However, remember that the morespecific and detailed your instructions,the harder the document is to prepareeffectively. If your instructions arecomplex, consider seeking help from alawyer.There may be occasions when yourfinancial attorney and your guardian(appointed under an enduring power ofguardianship) need to work together.In these circumstances, your financialattorney is responsible only for carryingout the financial transactions associatedwith implementing your guardian’sdecisions.If the power of attorney operates onlyin specific circumstances, your attorneymay need proof that the circumstanceshave occurred. For example, yourattorney may need to provide yourbank with a letter from your doctorstating that you are no longer capableof managing your affairs. However,privacy laws mean that you must havegiven your doctor permission to writesuch a letter beforehand. Clearly,this may not be possible if you areincapacitated. Therefore, be preparedfor such eventualities by obtaining anyauthorisations that may be needed at thesame time as you prepare the power ofattorney.Enduring power of attorney(medical treatment)An enduring power of attorney(medical treatment) is a legal documentthat authorises another person to makedecisions about your medical care andtreatment on your behalf and takes effectif and when you become incapacitated.The incapacity can be temporary, forexample, due to a loss of consciousnessafter a car accident, or permanent, forexample, due to dementia. However, itdoes not take effect if your decisionmakingcapacity has been reduced onlybriefly or mildly.Your attorney holds the same powers(rights) to accept, request or refusetreatment that you had previously and isobliged to make the same decisions theybelieve you would have made.Take the time to make sure yourproposed guardian is aware of yourpersonal views and desires, so theycan take account of them when makingdecisions on your behalf.An enduring power of attorney(medical treatment) does not permityour attorney to refuse you reasonablemedical procedures for the relief ofpain, suffering and discomfort or thereasonable provision of food and water.Your attorney can refuse other forms oftreatment however the decision may beoverridden by the relevant board, courtor tribunal in your state under certaincircumstances.Enduring power ofguardianshipAn enduring power of guardianship isa legal document that authorises anotherperson to make personal and lifestyle(non-financial) decisions on your behalf.The guardianship takes effect ifand when you become incapacitated.The incapacity can be temporary, forexample, due to injury, or permanent, forexample, due to intellectual disability.The powers given to your guardiancan be as extensive or as restrictiveas you choose. For example, they maybe responsible for all your lifestyledecisions, such as where you live, whomyou live with, where you work, whocan visit you, and what health care youreceive. Alternatively, they may beresponsible for only some decisions,such as whom you live with.Your guardian is obliged to act in yourbest interests. Take the time to makesure they are aware of your personalviews and desires, so they can takeaccount of them when making decisionson your behalf.If you don’t specify the powers youwish to confer on your guardian, theirpower automatically defaults to that ofa parent over their child. Such powersinclude making personal day-to-daydecisions as well as decisions aboutaccommodation, general lifestyle andemployment. You can also give theperson the power to make decisionsabout your medical treatment, exceptwhen an enduring power of attorney(medical) has also been signed.Your guardian cannot allow you to besterilised, have a pregnancy termination,or participate in medical research andorgan transplants. Permission for theseprocedures must be sought from therelevant board, court or tribunal in yourstate.The legal requirements for preparing apower of attorney are governed by State/Territory laws. For information andadvice about guardianship and powerof attorney matters please contact TheOffice of the Public Advocate in yourstate or territory.This article was adapted from informationprepared by John Berrill from Maurice BlackburnCashman for the Chronic Illness Alliance. TheEpilepsy Report kindly thanks the Chronic IllnessAlliance for permission to draw from this material.For more information about the Chronic IllnessAlliance visit www.chronicillness.org.auTHE EPILEPSY REPORT MAY 200829
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