May 2008 - Epilepsy Australia

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