Every day we make decisions for ourselves on all sorts of family, work and lifestyle issues. But what happens to us if we cannot make these decisions for ourselves due to illness or accident?

If we have legal documents in place prior to losing capacity, decisions can be made on our behalf by someone we know and trust. If we do not have those legal documents in place before we lose capacity, then decisions may be made by a government department set up for the purpose of dealing with financial and personal affairs of an incapacitated person.

Given the choice, most of us would prefer to choose someone who we know and trust to make decisions on our behalf, but to do this we need to make the legal documents whilst we have capacity. A person has capacity to make valid, legal documents if they can understand why they are making the document, the choices which may be involved, i.e. choosing a person to act for them, be able to weigh up the result of giving power to someone else to act for them and be able to communicate their decision to make a legal document.

Making these legal documents is also a cost-effective way of protecting your family, finances and assets.

There are two types of documents that TLS may prepare for you to achieve this, with each document serving a different purpose. Unlike a Will, the following two documents are effective while we are alive.

Enduring Power of Attorney

An Enduring Power of Attorney (EPA) is a legal document where you can appoint an “attorney” to manage your assets and financial affairs.  Your attorney can act for you either immediately from when you sign the document, or once you lose mental capacity. The power of attorney “endures” through your loss of mental capacity, whether it be by accident or illness.

The person you choose to be your attorney should be a responsible adult, who will act in your best interests,, keep accurate financial records and manage your financial affairs properly.

EPAs are used to manage your property and financial assets, but not your personal, lifestyle or medical treatment. EPAs can also be used for specific purposes, for example, if you are going overseas for a lengthy visit and you are selling a property in the meantime, or need to appoint someone to run your business whilst you are away. This is a General Power of Attorney and is used for limited tasks and times.

Enduring Power of Guardianship

A person who is your attorney under an EPA cannot make decisions for you concerning your personal, lifestyle or medical treatment. For this purpose, you can make a legal document to appoint an “enduring guardian” called an Enduring Power of Guardianship (EPG).

If you have an EPG, you can choose the person most likely to act in your best interests and look after you in your incapacity in a way that will allow you to retain as much independence as your health circumstances permit and make your own decisions where you can. Your appointed guardian can make some or all of your personal, lifestyle and treatment decisions.

If you don’t have an EPG and you lose capacity, then the State Administrative Tribunal may have to appoint a guardian to decide where you live and with whom, whether you have to work or attend education or training, the types and frequency of medical, dental or other treatment you receive and with whom you can associate. This can be restrictive, and in some cases, burdensome on an incapacitated person who cannot express their own free will in these areas.

Get it done!

We all have the right and capacity to make our own decisions and manage our own lives. But if we contract an illness or have an accident that destroys all or part of our ability to do these things for ourselves, we may lose that capacity.

You cannot make either of the legal documents explained above if you lose capacity. Each and every one of us should have a valid Will, EPA and EPG.

If you or someone you know wants more information, help or advice, please feel welcome to call us on 6383 5551 or email us at re*******@*ls.law.