Everyone likes to be in control of the decisions they make. However sometimes events happen that mean we lose the amount of control we previously had. These can be simple problems such as being overseas and being unable to attend to your financial affairs, or serious problems such as losing the ability to manage your own affairs as a result of an accident or illness.
An enduring power of attorney is a document under which a person ('the principal') gives to another person ('the attorney') the power to act on their behalf. As the name suggests, the power will continue beyond (endure) the time that the principal becomes of unsound mind and is unable to conduct his or her own affairs.
An enduring power of attorney may cover the following types of decisions.
- financial - for example, the payment of bills and investment decisions. You may nominate when your attorney's power to make financial decisions is to begin. If you do not name a date or an occasion, it begins immediately. However, if you lose the capacity to make such decisions before the date or occasion you name, the power will begin at that point.
- personal - for example, where and with whom you live, and day-to-day issues such as diet and dress. Your attorney's power to make personal decisions does not begin until (if ever) you are incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision.
- health - for example, whether to consent to an operation. Your attorney's power to make health decisions does not begin until (if ever) you are incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision. You will note that the power to make health care decisions does not extend to matters of 'special health' such as pregnancy termination and certain psychiatric illnesses, or medical conditions that require the execution of an Advance Health Directive.
The decision making power of the attorney can be restricted. You can specify the decisions that you do not wish your attorney to make. Further, the attorney's power will cease to be effective if it is revoked or upon the death of the principal.
Please note that the laws governing powers of attorney are different in each State and therefore it is extremely important to consult a lawyer when making a power of attorney.
An Advance Health Directive is a legal document that allows you to give directions about your future health care with respect to particular medical conditions and the types of treatment that you do or do not wish to receive.
The types of medical conditions covered by the directive must be life threatening in nature and include conditions where the principal:
- has a terminal illness;
- is in a persistent vegetative state; or
- is permanently unconscious
Provided that the medical condition is life threatening in nature, you can direct that your attorney withdraw or withhold life sustaining medical treatment. These instructions will override any other powers of your attorney, general or specific.
The directive only comes into affect once you have lost the capacity to make your health care decisions, such as being in a coma.
