Give careful thought to who acts on your behalf when you can no longer make your own decisions as even your children may not put your needs first.
When Catherine Dawson objected strongly to going into residential aged care, her adult children looked immediately to enact the enduring power of attorney on which they were signatories.
After all, their mother had a diagnosis of dementia and was clearly struggling to pay her bills, manage her investments and cook meals. She had some home help to assist with cleaning and gardening, but was otherwise looking to family for help.
The children were certain their mother would be better off in care and started completing application forms and touring suitable places.
Meanwhile Catherine continued to dig her heels in, cutting short any discussion with her family about care homes or moving.
While the enduring power of attorney (EPOA) gave the children some power to take care of financial matters, when it came to deciding where their mother should live, they were simply being heavy-handed.
Other family members began asking questions, including whether elder abuse or a violation of human rights was about to occur and whether Catherine had lost capacity to make her own decisions, triggering the EPOA?
An EPOA is a legal document that allows a person to choose someone they trust to act on their behalf if they become unable to make decisions for themselves. An EPOA takes effect once a person has lost the capacity to make decisions.
In most jurisdictions an EPOA is limited to financial and property decisions, but it depends on the state or territory law as to whether the EPOA provides authority for lifestyle, accommodation and medical decisions. For such decisions, you would also need to be an enduring guardian.
Dementia covers a number of cruel and debilitating conditions, with memory loss and cognitive impairment being common.
But a diagnosis of dementia or cognitive impairment doesn’t mean a person can’t make decisions about where they want to live.
Capacity is decision-specific, says Rebecca Tetlow, Tetlow legal partner and wills and estate specialist.
Even if someone can’t manage their own finances or manage their own portfolio, they may have the capacity to decide where they want to live, she says.
In the ACT, the EPOA comes with a “statement of principles” that broadly says that an attorney must respect the dignity of the older person, respect their quality of life and allow them to participate in the decisions as much as they are able.
While a care home may look to be an obvious solution for someone whose ability to look after themselves is slipping, if an attorney knows the person’s preferred option is to stay at home, then they should first demonstrate they have done everything possible to help make that happen, such as through putting in place home services to keep them there.
It is a human right for everyone to be able to make their own decisions, but it’s necessary to understand the consequences of the decisions and the risks involved. For example, someone living alone may need to accept that if they have a fall, a risk is they won’t be found immediately.
In all cases, even if a person has impaired capacity to decide where to live, the attorney still has the obligation to make decisions according to the wishes and values of the older person.
The EPOA cannot practically make the decision unless there is evidence of the person’s incapacity – for example a doctor’s report – in order to trigger the power, says CRH Law Partner Brian Herd.
The issue often comes to a head if a person is in hospital and the hospital won’t release them to go home if they live alone but it is well-known the older person doesn’t want to go into care. The EPOA is left with a difficult decision, but possibly has no choice but to find the best care home possible.
Marie Brownell, Equity Trustees national manager of estate planning, says it is important people think about who they would like to act on their behalf while they are still able to decide.
While a child may seem like the natural choice, this is not always the right move – particularly if there are differences, says Brownell.
The person selected will have considerable power over finances and property and may also have to make tough decisions in the future, so it is important to get the appointment right. Brownell says people in this situation should be 100 per cent certain the chosen person will put them first, with no shadow of a doubt.
Unfortunately there is no one to oversee decisions made by attorneys. The extent to which someone lets someone else make a decision on their behalf or how forceful an attorney should be is a grey area.
The relevant Civil and Administrative Tribunal in each state or territory has a number of powers that may be useful and relevant for anyone who thinks they may have appointed the wrong person or they see an attorney acting in a way that could constitute elder abuse.
As long as someone has capacity – and the tribunal can help decide that – they can apply to have an EPOA revoked.
If someone has lost capacity, but someone else – such as an adult child or elderly relative – believes they are well placed to make decisions on their behalf, including handling banking and where to live, they can apply to the tribunal for guardianship.
For those who have nobody to act on their behalf, an application can be made to the relevant tribunal for the Public Trustee to act as guardian in the event capacity is lost. There are costs involved for some applications to the tribunal and the public trustee where they are appointed guardians or managers of a person’s assets.
For Catherine Dawson, even if she or her lawyer applied to the relevant tribunal to have her existing EPOA revoked and rewritten with the specific instruction to not put her in a nursing home and to use all her resources to keep her at home, it could result in making the triggering of an EPOA’s power difficult if her cognition declined.
For example, two doctors may be required to confirm her loss of capacity instead of one.
While you can’t be forced into aged care, your EPOA may have the final say. This makes it vital that you are absolutely certain whoever you appoint has your best interests at heart.