5. Planning for Life and Preparing for End of Life
Topic 3 of 6
Decision makers
For most people, there will come a time when we are unwilling or unable to do life’s administrative and bookkeeping jobs. For example: making decisions about energy plans, or Support at Home, or going to the bank to change an account to one with a better deal.
There may also come a time when we are unable to make decisions or express what we want in regard to our medical treatment and healthcare. This could be due to illness or loss of capacity.
We need to plan for this time by legally appointing a person we trust to carry out our wishes or even make decisions for us. This person is called a substitute decision maker. A decision maker can only act on our behalf if we have given them legal authority.
These legal authorities are:
- A Power of Attorney
- An Enduring Power of Attorney
- An Enduring Guardianship.
A solicitor can prepare all of these documents.
Select each question to explore this in greater detail.
A quick look at what ‘capacity’ means
All adults are presumed to have capacity, meaning they can make decisions about their daily life – even if they don’t seem like good decisions to you or you don’t agree. Capacity is about making decisions where you can:
- understand all of the facts and choices involved
- weigh up the consequences and
- communicate the decision
Although ‘capacity’ is a legal word there is no ‘one size fits all’ test. It is ‘decision specific’. That is why areas of life we make decisions about are grouped into financial/property and health/lifestyle when looking at appointing substitute decision makers.
Substitute decision makers will only be appointed if:
- the person has capacity and decides to put substitute decision makers in place for the future or
- TASCAT approve the need to appoint a substitute decision maker.
But how do you know if someone needs a substitute decision maker?
Particular situations may lead you to question whether the person you care for has capacity, and because you know them well this may lead you to think about decision making. For example, someone may make decisions that lead to harm or mistreatment that is out of character.
For a good, practical read on this topic and a look at some examples go to the Resources section and select ‘Capacity Toolkit’.
What is a Power of Attorney and an Enduring Power of Attorney?
A Power of Attorney (POA) and an Enduring Power of Attorney (EPOA) will give another person the legal authority to carry out your wishes for any decisions regarding finance or assets.
The Power of Attorney (POA)
This is a legal document that allows a person(s) to manage financial and legal decisions on your behalf only while you have the ability (capacity) to make decisions yourself.
Enduring Power of Attorney (EPOA)
This is a legal document that allows a person(s) to manage financial and legal decisions on your behalf even if you lose the ability (capacity) to make decisions for yourself. These documents can only be completed and legally valid:
- When the person making the POA/EPOA has capacity
- When it is registered at the Land Titles Office
- The fee is paid.
Everyone should have a plan in case they can no longer manage assets and finances. It is a way to protect your financial and property interests and that of the people you care about. Setting it up with your loved ones ensures that their wishes are known and documented.
You can get fee information and the POA and EPOA application forms at Land Tasmania. It is recommended that you get independent legal advice before completing the form.
What is an Enduring Guardianship?
An Enduring Guardianship (EG) is the appointment of a substitute decision maker who has the power to make decisions about your health and lifestyle in the event that you cannot make these decisions for yourself.
You can get the application form at Service Tasmania (or call 1300 135 513) or the Tasmanian Civil and Administrative Tribunal (Tascat) website (or call 1800 657 500).
What is the Public Trustee?
If an elder does not wish to appoint someone they know to manage their financial affairs then they can ask the public or state trustees to manage them. This involves fees but may help to avoid family issues.
For more information go to the Public Trustee Tasmania website here, or call 1800 068 784.
What is the Public Guardian?
If the elder has no one reliable and trustworthy to make decisions for them (or has no family) they can ask for a public guardian to be appointed or an application can be made by someone with a genuine concern about the person.
To talk to someone at the Office of the Public Guardian call (03) 6165 7500 or go to their website here for more information.
What are some tips to avoid elder abuse?
Here are some tips on how to avoid elder abuse:
- Elders need to choose their own solicitor.
- If you are being appointed powers of attorney, it should not be your solicitor.
- The solicitor should be someone who specialises in helping elders put these documents in place.
- The solicitor needs to provide disclosure beforehand in an engagement letter explaining your elder’s rights and giving an estimated fee quote for work.
- The solicitor needs to explain in detail what all documents mean.
- They must talk to the elder about who they wish to appoint without the appointee being in the room.
The Will
Wills are a crucial part of the planning process. It gives your elder (and you) peace of mind that their wishes will be followed.
For information on Wills, you can look at the Wills section on the Public Trustee website or go to Legal Aid for a fact sheet on making a will.
The Resources page has a short YouTube on Who inherits my assets if I don’t have a valid will.
Select ‘Play’ to learn more about the importance of seeking professional help for Wills.
A will is another essential legal document. Without a will, there will be costs, confusion, chaos, lawyers, public trustees, delays, and stress.
A will makes sure our wishes are followed and that part of the sorrow of losing a loved one does not include conflict over the will.
It is highly recommended that you use a solicitor who does a lot of wills. Many solicitors will have wills and estate planning on their website, but if they don’t do a lot of them, they can make a mistake. A good solicitor will help express your wishes precisely, help you steer clear of ambiguous language and unintentional problems for others, and help appoint an appropriate executor or executors.
Consider appointing your accountant as a co-executor. They can make it easier for the executor because they know your financial affairs and understand laws and legal requirements. They are objective and can reduce arguments.
It is not recommended to use a will kit. It is difficult to find a one-size-fits-all legal document, and it can easily convey unintentional or ambiguous instructions. It is fraught with danger.
Module 5
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MODULE 5
