Law Talks Episode: A day in the life of an attorney acting under an Enduring Power of Attorney

Robyn:  Good morning and welcome to another edition of 4CRB’s Law Talks and today joining me is Attwood Marshall Lawyers Aged Care Paralegal, Bindy Marshall. Good morning, Bindy.

Bindy: Good morning, Robyn.

Robyn: Well, Bindy, we’ve discussed many times with the lawyers on this program the importance of appointing a power of attorney to provide you with peace of mind that important things will be taken care of by someone you trust if you are not able to make decisions or handle your own affairs. So, can you please give our listeners a brief explanation of what it means to be someone’s attorney under a power of attorney or enduring power of attorney in Queensland.

Bindy: Sure. The Power of Attorney, or Enduring Power of Attorney, is a legal document which means you’re appointed by a friend or family member to have the power to make decisions when they’re unable to. It’s really important to understand the commitment that you’re taking on and your rights and responsibilities.

Every person, even if they’re cognitively impaired, obviously has the human right to be valued and respected. Understanding the person’s wishes and views are really essential. Appointing someone, a family member or friend out of obligation is probably one of the worst things you can do.

You really need to appoint someone you can trust and someone who will carry out your wishes and keep them safe.

When appointed as Enduring Power of Attorney, it is your job to ensure the person is safe, preserve their independence for as long as possible, place supports in place if needed, and ensure all financial obligations are met. Ensure that they are remaining connected with their social support network, friends, family, et cetera, is also really important.

Robyn: Yeah. So, Bindy, can you just explain what are the main differences between a general power of attorney and an enduring power of attorney?

Bindy: A general power of attorney allows you to appoint someone, um, that you trust, an attorney to make decisions about financial matters over a certain timeframe. For example, you might use the general power of attorney if you’re going overseas, and you need someone to sell your house or pay your bills while you’re away.

The primary difference between a power of attorney and enduring power of attorney is that the latter continues to have effect after you’ve lost mental and physical capacity to make decisions.

In contrast, a general power of attorney ceases when you can no longer do so. 

Robyn: Many people think of managing finances when they hear power of attorney, but what are some of the less obvious tasks that an attorney might also be responsible for.

Bindy: Gosh, it’s so much more than just managing finances. It’s looking after the person’s whole being. This might mean the attorney being in a supported decision-making role to assist the older person to remain at home with the care in place for as long as possible. It may mean that they have to transition into care.

And they have to oversee the whole process to continue to monitor and adjust things as they go. 

And in some cases, protecting them from the people in the community who don’t have the right intentions to work alongside the bank to protect the older person.

Robyn: Yeah, it can be, uh, quite a lot of duties to take on there. So can you walk us through a day in the life of an attorney?

Bindy: Yes, of course. The most wonderful thing about being an attorney is that no day is ever the same. People have declining health all the time. And a lot of time is spent liaising with doctors, specialists, and determining, with the principal, what’s the best course of treatment.

And yes, sometimes, that’s even if they’re cognitively impaired. If the principal returns home from hospital, it’s important to ensure that they have all the correct support at home, whilst continuing to pay all associated accounts.

Often, you will have to make follow up medical appointments, liaise with carers, providing care in their home and as their needs are going to constantly change, you have to keep your finger on the pulse with that one.

The attorney does whatever’s required to work alongside the principal maintaining their wishes at all times. To provide the principal with dignity to age in place, whether that be at home, hospital or in an aged care facility.

Robyn: What are some examples of decisions an attorney might have to make that could significantly impact the person they’re representing?

Bindy: So, an example of that is a cognitively impaired client, who has his wishes to maybe go into respite care, may be struggling to manage at home with only approvals for Commonwealth Health Support Program. The principal may determine after a couple of weeks that this type of care isn’t suited to the principal at that moment and the attorney would have to put measures in place to ensure that private care is provided at the home.

The principal would then have the dignity of ageing in place in their own home. This isn’t to say that later on down the track, the principal may decide that they need to transition into care because their care needs have become too high.

Robyn: How important is it for an attorney to understand the personal values and preferences of the person they’re acting for?

Bindy: This is essential to fulfilling your role as an Enduring Power of Attorney. The person you are appointed to act for may have certain cultural or religious beliefs that may dictate whether they go into care or where and the type of care that they receive.

The meals they can eat and understanding their medical requests like a do not resuscitate. It is really important to understand the family relationships and try and preserve these as much as possible as this is the vulnerable person’s support system is important to have a detailed conversation with your attorney and write down your wishes, especially if you feel strongly about certain things.

Often, we hear of pals of attorney being appointed, but they haven’t seen the client for years. They haven’t had a conversation with the person that they are appointed to look after and then have to make life changing decisions on behalf of the person. This can be really overwhelming for both parties as the attorney is just doing what they think is best.

The person they have appointed to look after them might be nonverbal and may not be able to articulate that they don’t want to go into care and are able to afford private care in their own home.

This example happens more often than you think, assuming is one of the worst things people can do.

Robyn: Yeah. Okay. If someone is considering appointing an attorney, what should they think about when ensuring they choose the right person for this role?

Bindy: The person they appoint is the person who will be their voice to speak for you. It’s really important that they understand how to support you. Should your health decline really quickly and take away your rights to act for yourself.

The person you appoint should be dependable, not selfish, happy to support you in your right to choose for yourself and advocate for you.

You can’t just quit because the going gets tough. This person should be a person you can trust your life with. 

Principals often request their lawyer to act as their attorney as they don’t have family or friends or a person that they can trust to make decisions on their behalf.

Experienced attorneys can support the principal based on their wishes and act accordingly alongside their client.

Robyn: So finally, Bindy, what advice would you give to someone who has just been appointed as an attorney? What should they do to prepare for this very important role?

Bindy: This is a great question. Sit with the person whom you’ve chosen to work alongside. Take a little book along with you and write down all the questions about the person’s health. This may already be recorded in the person’s Advanced Healthcare Directive. However, it is really important to hear it from them. Examples of these questions are, “should you suffer with a cognitive impairment, what are your wishes?” As an attorney, you need to understand the person’s response and ensure that you’re comfortable with carrying out their wishes. I would suggest an annual catch up to ensure that their wishes haven’t changed and to ensure that they have all of their affairs in order, for example, advanced healthcare directive, their wills up to date, those types of things.

Robyn: Yeah, great advice, Bindy, and I’m sure letting people know in advance what you want in a particular situation can help prevent a lot of conflict, particularly if different people are involved and have different opinions.

Bindy: Yes, you are right.

Robyn: Thanks for joining us today, Bindy. You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.