There is a lot of news happening now about Royal Commissions. The newest Royal Commission, investigating the Aged Care Industry, has copped a lot of flack recently in the media. 

Elder abuse is also very topical and there are many sad examples of the elderly in our society being taken advantage of financially. Unfortunately, it is not only strangers, but other financial predators and, shockingly, it can often be members of the family. 

Unfortunately, the motivation for such abuse is often greed. Or, alternatively it can be financial expectations by family members which are not met. Or what they expected or hoped. 

Family Dynamics

In my legal practice I have been made aware of many examples of dysfunctional family dynamics with members of the extended family taking advantage of their parents or grandparents, lack of understanding or mentally capacity.

It becomes more concerning to us because unfortunately the way our nuclear family works, most of us will end up in a care facility whether we like it or not!

Aged care workers jobs are very difficult and dealing with the aged can be extremely hard. This is especially apparent when those patients or clients of the care facility have dementia and can often be unreasonable for no apparent reason.

This may be through no fault of their own other than their mental capacity or lack thereof, and or their lack of awareness in relation to their actions. 

Living Longer

There is also the fact that we are living longer physically through the assistance of medical procedures and medications that prop us up and extend our lives. The bottom line is that we are all living longer. However the quality of life may not be what we dream or hoped for. 

I have not met anyone who is looking forward to spending the last 5-10 years of their life in a nursing home. In fact, it is the opposite, most people have the view that they do not want to “end up” in a care facility. 

Losing Control

Once we enter that world you lose control of the most important things in your life, including the food you eat, people you wish to engage with, visitors you have, your ability to reason and sometimes even simple things such as dressing yourself.

Be Prepared

So, what can we do to prepare ourselves for such a fate? First thing to do is to appreciate that at some stage, physically or mentally, we will not be able to look after ourselves. Once that realisation occurs, from a legal prospective, we should all put appropriate arrangements in place. That way we can choose the people or family members that we want to care for us, and more importantly, give them permission and direction as to what care you would like and how such care is to be implemented. 

Further, the other important aspect is to ensure that our assets are looked after in such a way that they can be accessed and utilised to finance such care, not being wasted or fraudulently obtained. 

Enduring Guardianship

One way of ensuring that there is someone who has the authority, permission and direction to care for you once you have lost capacity and are very vulnerable, is to prepare an Enduring Guardianship document.

Circumstances can arise and you may find yourself in a position where you are unable to make everyday decisions for yourself. It is estimated that 70% of us will have other people making our end of life and other decisions for us. These decisions may include; where to live, which doctor to go to, what medical treatment and any other services that may be needed. 

With an Enduring Guardianship document, directions can be made relating to your current and future lifestyle decisions, the type of health care you wish to receive, what other personal services you wish and future care decisions which may relate to minor or major operative treatments.

The consequences of not having such a document in place, and informing those who wish to care for you and your needs, can be emotionally draining, time consuming and expensive. This may even include making an application to a tribunal for such orders to be made. 

A Guardian must be over 18 and preferably someone you trust who is willing to make decisions in your best interest when you are incapable of doing so.

Though you cannot give a direction to your guardian to do something which would involve an unlawful act.

You can appoint more then one person and they can act jointly or separately. However, it is important that they co-operate with each other.

You will need to discuss your wishes with your guardian at the time you make the document. 

It is also advisable that you obtain advice from your doctor and seek legal advice.

Power of Attorney

With financial matters a Power of Attorney is a document that you can utilise. A Power of Attorney can be an extremely useful document when you are physically and mentally unable to manage your financial affairs. 

It is important to remember that the person or persons whom you appoint as your attorney can make decisions on your behalf of a financial nature. For example, your attorney may manage your finances, pay bills, renew your insurance, re-register your motor vehicle, enter into contracts to sell your home and remove money from your bank account. In other words, the attorney is able to do anything on your behalf that you are legally able to do. The attorney must be acting in your best interest. 

You can specifically authorise your attorney to confer a benefit upon him or herself and this may be particularly relevant if you are appointing your spouse as your attorney. 

It is always advisable to appoint an alternate or back up attorney because if your attorney becomes incapacitated themselves you have a fall back for plan B. 

How do you decide who to appoint?

Someone you trust

Someone who has capacity

Someone who will properly manage your financial resources

Someone who has your best interests at heart. 

Your Power of Attorney does not affect your Will and ceases on your death. You can also appoint an attorney in other circumstances such as:

Travelling overseas or interstate

If you are going into hospital 

If you are physically unable to look after your affairs

If you require a transaction or financial matter to be dealt with in your absence.

Don’t forget that if you are involved in a family company then you should have that corporate entity appoint an attorney to make specific decisions if necessary when you cannot.

Being practical and making your own decisions about you, while you’re able and know what you want down the track, is sensible and solves a lot of stress issues for everyone down the track. 

James Paton

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