Administering Estates

Aged Care Plans: Who Will Make Decisions for Me if I Can’t?

Rod Behenna says planning ahead with Enduring Power of Attorney and Advanced Care Directive documents will prevent many wrong decisions and reduce stress.

Rod Behenna says planning ahead with Enduring Power of Attorney and Advanced Care Directive documents will prevent many wrong decisions and reduce stress.

Who will take care of us when we are unable to do so ourselves? There are legal, financial, medical and lifestyle decisions involved, which may be related to your aged care plans or other circumstances.

We are living longer and with the maturing of the baby boomers these issues are going to become much more prevalent.

None of us wants to contemplate leaving their own home to move into some sort of assisted accommodation, but planning ahead will minimise the stress and difficulties that arise when the time comes to effect this lifestyle change, especially as the need to make such changes frequently arises quickly and unexpectedly.

Putting a plan in place is just like taking out insurance – one hopes that it will never be needed but it is extremely helpful if the worst was to happen.  It is simply prudent to have measures in place to deal with the unexpected or inevitable.

The most important document to have in place for this purpose is an Enduring Power of Attorney, which would give a trusted person that you nominate the power to make legal and financial decisions for you.

It is imperative that you have total trust and confidence in the person that you choose as your attorneys because they can basically do anything that you can do, such as buying and selling real estate, operating your bank accounts and looking after your investments.

The attorney must exercise these powers on your behalf and in your best interest but if your bank account has been cleaned out and the money spent on the pokies (or something worse) it is no consolation for you to be told that the attorney was not supposed to do that.

It is normally a good idea to appoint more than one attorney so that there is a back up if anything happens to the first one.  You need to think about whether either one of the attorneys can act for you or whether you want them to act jointly.  You can provide that they must act jointly for any important matters such as selling your house, but that they could act individually for day to day matters.

An “ordinary” Power of Attorney automatically ceases if the donor of the power loses their capacity.  An “Enduring” Power of Attorney endures past such incapacity.  The document can be drafted so that the powers given to the attorney commence as soon as the document is signed or only if you have lost your capacity.  Another useful device is to draft the document so that it commences its operation upon you giving further written notice that you want it to come into effect – such as when you are going overseas on holiday.

Because it is such an important document and there are so many variables it is a good idea to get professional assistance in preparing an Enduring Powers of Attorney, and one should be extremely wary of helpful “friends” just organising one for you on a form from the newsagent.

Another useful document is an Advanced Care Directive.  This appoints somebody called a substitute decision maker to be able to make medical, lifestyle and end of life decisions for you if you have lost your capacity and cannot make those decision yourself. Usually (but not always) the same people would be appointed as both your attorney and your substitute decision maker.

You can prepare this document yourself by using the DIY kit available here.

If unfortunate events arose and it became impossible for you to continue to live unassisted in your own home, you (or your substitute decision maker) could organise a move into assisted accommodation of your choice.  The attorney could organise how the entry fees into that accommodation were to be paid including, if necessary, arranging for the sale of your house to fund the alternate accommodation and the ongoing expenses involved.

As well as having this essential documentation in place it is a good idea to have a family discussion about what sort and level of care you may need in the future and how that is to be paid for.  You may be in the fortunate position where you can afford extensive live-in assistance from a carer, but that is extremely expensive and not really an option for most people.

Planning for these unwelcome matters goes a long way towards minimising stress and anxiety. It also reduces the risk of making inappropriate decisions if forced to make rushed choices on your future accommodation or lifestyle needs.

Author: Rod Behenna

 For assistance with your Powers of Attorney , or for any other Will or Estate matter in South Australia, Western Australia or Northern Territory, contact us.