If something happens to you or your loved one and they become mentally incapacitated, how will their financial, legal, health and lifestyle decisions be managed? If they do not have arrangements in place it will be too late as they will already be considered mentally incapacitated to make decisions or sign documents. Under such circumstances, decisions can only be made by application to the South Australian Civil and Administrative Tribunal (SACAT).
So how can you pro-actively plan and protect yourself or loved ones?
1. Enduring Power of Attorney
A General Power of Attorney gives the person/s you chose the authority to deal with your financial and legal affairs. However this power ceases to operate if the person loses their mental capacity to make decisions. A General Power of Attorney is usually considered more for convenience purposes, such as looking after ones financial and legal affairs in Australia whilst overseas.
Only an Enduring Power of Attorney gives the authority to continue or endure to make decisions in relation to financial and legal matters only, in the event that someone loses mental capacity. If an Enduring Power of Attorney is not already in place at the time someone loses their mental capacity to make decisions then, only an application to the South Australian Civil and Administrative Tribunal can a person be appointed as your financial or legal administrator. However this is subject to that person being deemed “fit and proper”, otherwise the Tribunal may appoint the Public Trustee to manage your affairs.
2. Enduring Power of Guardianship now known as Advanced Care Directive
Similar to an Enduring Power of Attorney, an Advanced Care Directive gives the authority to make decisions in the event that someone loses their mental capacity, but in relation to health, safety, lifestyle and welfare. (unlike Enduring Powers of Attorney which grant authority in relation to financial and legal matters only).
An Advanced Care Directive gives the right to either the person you chose or you can have wishes documented (rather than impose their own views and values) in relation to your medical treatment, accommodation, holidays, and anything else to do with your health and welfare.
Therefore, it is wise to have both and Enduring Power of Attorney and an Advanced Care Directive, in place should the unexpected happen. We encourage people to incorporate these powers when preparing their will.
For further information visit our website at www.xenlaw.com.au/estate-planning-wills-preparation-solicitor or call us on (08) 8336 8888 to speak to one of our solicitors.