Having someone you can trust being able to make important decisions on your behalf when you are unable to do yourself is essential. In South Australia there are four important documents you should have:
- An Enduring Power of Attorney is used to appoint someone to make financial and property decisions for you in the event that you are unable to make those decisions yourself.
- An Enduring Power of Guardianship is used to appoint someone to make health and lifestyle decisions for you if you can’t make them yourself.
- A Medical Power of Attorney gives specific powers to make decisions about medical treatment options if you become incapable of deciding for yourself. It does not authorise the agent to refuse the natural provision of food and water or the administration of pain relieving drugs.
- An Anticipatory Direction is a living will which outlines your preferences for medical treatment. It only applies if you are in the final stages of a terminal illness or in a coma. These documents allow for the refusal of further medical treatment or the withdrawal of life support systems.
Who can make a Power of Attorney or Guardianship?
Anyone over the age of 18 who has the capacity to understand the nature and consequences of the document, who makes the decisions in the document of their own free will and who can communicate clearly what those decisions are.
When should I make a Power of Attorney Appointment of Enduring Guardianship?
Before you need them! These documents safeguard your interests in the event of something unforeseen – an accident or illness that robs you of your capacity to make decisions for yourself. It is better to be prepared and confident in knowing that the person you choose will be making important decisions about your money, your living arrangements and your health.
When does it start?
For a Power of Attorney it begins when you nominate that it should. Powers of Guardianship only commence when you are unable to make your own decisions.
What if I have both an enduring guardian and a medical agent?
If you have appointed both an enduring guardian and a medical agent, both have the power to make decisions in regard to your treatment, however if your medical agent is available then your guardian cannot act in relation specifically to medical treatment.
Who should I appoint to be my Attorney or Guardian?
You need to appoint someone your trust to make the right decisions. With an Enduring Power of Guardianship, your attorney cannot be directly or indirectly involved in your medical care or treatment.
What are the legal responsibilities of my Attorney or Guardian?
They are legally responsible to you and must act in your best interests. While you have mental capacity they must obey your instructions. They cannot give gifts to themselves or to anyone else unless you specifically authorise this and they must keep their finances and money separate from yours, keeping accurate records of all of their dealings with your money.
Who should I talk to about it?
It’s really important that you discuss these documents with a lawyer who can give you professional advice about your particular circumstances. It’s also vital that you discuss your wishes with your family to avoid unnecessary conflict and stress.
Do I need a witness?
Yes, these documents need to be witnessed by a person with statutory authority such as a solicitor or Notary Public.
Can I change my mind?
Yes, as long as you still have the decision making capacity to do so you can revoke or change these documents. This has to be done in a legally binding way, however, so please seek legal advice.