Law Talks Episode: Why legal advice is essential for drafting an Enduring Power of Attorney to ensure your wishes are honoured​

Robyn: Good morning and welcome to another edition of law talks here on 4CRB and today we have joining us Attwood Marshall Lawyers, Wills and Estates Senior Associate and accredited aged care professional, Larisa Kapur. Larisa is an expert in estate planning and elder law and understands the issues that people face when transitioning to aged care. She’s a passionate advocate for the rights of the elderly and the most vulnerable people in our society. Welcome to the show, Larisa.

Larisa: Thank you for having me.

Robyn: Well, today we’re going to dig a little deeper into our discussion from last week where we talked about supported decision making and issues people face when they lose capacity to make decisions for themselves.

One of the most vital tools that comes into play in these scenarios is an enduring power of attorney. So today we’re going to be talking about the role of an attorney, what people should do if they feel their wishes are not being honoured by their attorney or healthcare providers. Firstly, let’s quickly recap what is an enduring power of attorney?

Larisa: Well, an enduring power returning is a crucial legal document in Queensland that allows a person referred to as the principal to appoint someone they trust, referred to as the attorney to make decisions on their behalf if they need the assistance or they lose capacity due to illness, accident or age. It covers both financial decisions as well as medical, health and lifestyle.

So, with the financial decisions, such as dealing with your property, your bank accounts your Centrelink, you can stipulate when you wish for that to be effective, whether it’s effective immediately, on loss of capacity or certain date, and then with the medical health and lifestyle, those provisions are only in effect on loss of capacity.

Robyn: OK, so why is it important for a lawyer to draft these documents and for people to get advice about who to appoint, as their attorney?

Larisa: Well, it’s important to have an experienced lawyer draft these documents and consider your individual circumstances when tailoring the advice and provisions within that document, as well as provide you with a detailed overview of what power is given to the attorney and what roles they will have when acting in that capacity.

So often people don’t understand the complexities of an enduring power of attorney document. Which involves, you know, detailed legal requirements and not simply a matter of selecting a trusted individual to be your attorney. The document also involves defining the types of decisions the attorney can make for personal, health and financial, and even stipulating any limits or conditioning on these powers.

So sometimes it’s crucial to put certain conditions in these documents that will allow your attorney to have additional powers to be able to follow through with the wishes you have communicated to them. So, I’ll give you one example, so let’s say the principal, which is the person making the document, may wish to remain in their own home for as long as possible, rather than transition to aged care.

So, they will need to provide certain conditions in the enduring power of attorney document to allow their attorney the power to use all the resources available to them to enact this direction. So that means that the attorney is able to do whatever they need to do, explore whatever options are available to keep you in your home for as long as possible.

So, another thing that people often don’t understand is the extent of the power that an enduring power of attorney grants. So the powers are significant, so it’s allowing their attorney potentially to make substantial financial decisions, manage assets on your behalf, and even make decisions about medical treatments that you can or won’t receive, or and so forth.

So, without a carefully drafted document, there’s a risk of unintended consequences. A lawyer can help structure the document to ensure the attorney’s powers are clear, proportionate and appropriate to the principles wishes.

There’s many other aspects where lawyer can help, especially if someone’s experienced in this area because they can help with these provisions to reflect the principles unique needs and wishes. They can add specific clauses to ensure flexibility in some areas and safeguards and others.

So, for example, they might advise on or clause to protect against potential abuse or financial mismanagement, which could otherwise leave a vulnerable principle exposed. So it’s important, you know, when drafting these documents that the lawyer considers your circumstances and drafts them accordingly to protect you.

There’s also a properly drafted, enduring power training can help avoid many disputes in families because it makes the principles wishes, explicit binding, and can reduce the risk of any misunderstandings and conflicts, particularly amongst family members.

So, without legal guidance an enduring power, returning could be vague, incomplete, potentially resulting in family disagreements, or even expensive legal battles. So this is where I think it’s just vital to get a lawyer to ensure that your or the principal’s preferences are honoured even in sensitive areas like health care and even asset management.

Robyn: Yeah, sure. And what are some of the biggest issues you are seeing at the moment in this space?

Larisa: So, we’re getting a really high level of inquiries coming from people who are not having a voice about their own lifestyle decisions. There are instances where people who may have slight cognitive impairment are not being given the opportunity to take part in the decision-making process about where they live or what is happening to them.

Unfortunately, attorneys don’t always get it right, and this is where people’s wishes may be overlooked by their attorney, who does not necessarily explore all the options available to try to give the individual what they want. Attorneys often misunderstand their role and may take over decision making entirely rather than supporting the principle to make their own choices to the fullest extent possible.

So, the attorney is legally obligated to assist the principal in understanding information relevant to the decisions and should help them communicate their preferences in Queensland even attorneys are required to act in line with the principles wishes, if they can be ascertained and are reasonable, an attorney must make every reasonable effort to follow this requirement rather than submitting their own judgement.

And this is a hard part because sometimes the attorneys don’t realise that it’s up to the decision of the principle and they need to try to action that as much as they can and they’ll just unintentionally use their own judgement and do what they think is right.

So, and one of the biggest issues we’re seeing when it when it’s happening to attorneys and use of this document is people getting placed in nursing homes prematurely or against their wishes because the attorney thinks this is the easiest or the best option for them.

Robyn: So, let’s talk about that some more. How does it happen that someone can be moved into a nursing home against their wishes?

Larisa: Well, a classic example is when a person being appointed as attorney or guardian puts the individual whom they’re making decisions for into a nursing home despite that individual having enduring power of attorney document in place stating that they want to stay at home as long as possible. So, this is where that condition is really important.

Usually, the individual authorised the attorney to diminish their estate, to keep them at home for as long as possible, but the attorney doesn’t abide by that wish and they don’t investigate as to whether or not that it is, you know, a feasible option. They simply make the decision that the person needs to move into residential care and that’s that.

So, there are so many more options now available for residents in our community allowing people to receive at home care or to modify their homes so that they can remain safely and for longer. So this is where the need for proper legal advice for attorneys is imperative so that they can understand their role, how they can honour the wishes of the person they are caring for and fulfil their duties as attorney properly.

Robyn: So, it’s not just about the person making the enduring power of attorney, but the attorney themselves that can benefit from getting advice around these documents.

Larisa: Absolutely. So, when someone is appointed as an attorney, they should be getting independent legal advice to fully understand their role, the document itself, and how they can best support the person they’re making decisions for and or with.

OK, so the document, if drafted properly, will clearly stipulate what the wishes and instructions are of the individual who’s making that document and how the attorney can honour these.

The attorneys ultimately meant to be stepping into the shoes of the individual they’re caring for and making decisions in their best interests. An attorney should understand how supported decision making works to help that person have a voice and be a part of the decision making process, and this is where the new Age Care Act is going to be great because the new Age Care Act coming in focuses heavily on the concept of supported decision making.

Because I mean, it’s a basic human right. And so even if somebody doesn’t have the capacity to make decisions for themselves, it’s the attorneys duty to ensure that they do whatever they can to work with that individual to try and give them the opportunity to help them make the decision, not necessarily just make that decision for them.

Robyn: Yeah. Have there been instances where someone has disagreed with the decision made for them and had to take legal action to simply get the right back to have the autonomy to make decisions for themselves or override an attorney’s decision?

Larisa: Yeah. Yes, they have. So, I want to refer to a case study in this instance. So, this is a case study in the Queensland Handbook for practitioners on legal capacity, so the case study is this; Alexandra is a 75-year-old and lives in a locked dementia ward of a hospital. She calls a community legal centre and says that she has been diagnosed with Alzheimer’s disease but doesn’t believe she is ill.

Lawyers from that community legal centre attend upon Alexandra at the hospital. She’s alert, aware of her surroundings, understands why and how she is in hospital, and provides the lawyers with the logical and coherent instructions that she wishes to leave the ward and return home.

On reviewing Alexandra’s medical records, the lawyers discovered that she was diagnosed with Alzheimer’s disease six years ago and that the diagnosis has been confirmed recently by senior doctors on multiple occasions. The lawyers meet with Alexandra on two further occasions, at which time she continues to display high level of cognitive functioning. So despite the medical opinions in Alexandra’s records, the lawyers reached the conclusion that Alexandra has the capacity to apply to the Tribunal for a declaration of capacity, and to make decisions in relation to her healthcare and accommodation.

So as such, the lawyers are able to act on Alexandra’s instructions and they act for her. At the tribunal hearing the tribunal orders an independent medical review of Alexandra. The review concludes that Alexandra has capacity, and the tribunal grants the declaration so they essentially say that she has the capacity to make her own decisions.

So, this case study really highlights the complexity of capacity in the legal sphere and what needs to change to better support people in helping them make decisions for their lifestyle and health matters, even if they have cognitive impairment.

Robyn: And what are the issues you are seeing where people are having their fundamental rights to make decisions about their life taken away from them?

Larisa: OK, so we’re receiving influx of inquiries from people who were admitted into the hospital for treatment or medical condition and whilst in the hospital under care are deemed to have limited capacity where assumptions are made about their abilities or living conditions without genuine efforts to involve them in the decision making process and often resulting in them being placed in aged care without adequate input or consent.

So, the sad part is that often social workers and hospitals are very quick to say, “oh no, that person is not capable of living at home. It’s too risky. They’ve got to go into care.” Without considering other options. These days, there’s so many other options. The new Aged Care Act that’s coming in force is bringing out new funding options for home care providers so that people can age in place, if that’s suitable for them now, there is also private care available.

Private home care enables people to stay in their home, and perhaps that person has the means to fund their own care at home. So ultimately what we want is to be able to provide for people the opportunity to have an alternative arrangement, of not just having to go into a nursing home, but to stay at home if that’s what they wish.

It’s really disappointing when social workers do not consider all the options available. They don’t look at the whole picture and they are the ones that ultimately get the ball rolling and have someone moved into a nursing facility prematurely. If that person does have the capacity, they’ve got the dignity of risk. They should have the ability to choose whether or not they want to go home and put themselves at risk, if they don’t want to go into care and that should be, that’s on them, yeah.

Robyn: You know, I can only imagine the heartbreak people must feel when they don’t have a voice or their wishes are overlooked. So, what final message would you like to leave our lessons with today on this topic?

Larisa: Well, first of all, everyone should have a power of attorney, but don’t shortcut your way there. People try and complete these complex documents alone. You really need to get legal advice when completing your enduring power of attorney and ensure your wishes and preferences are clearly laid out. If you are an attorney, get advice on how to best perform your role and to understand the full terms within the document you should be abiding by.

And finally, we must continue to raise awareness about these issues and help people understand their fundamental rights. The changes coming through via the new Age Care Act will hopefully better support older Australians and I really encourage everyone to stay up to date with what’s happening in this space.

Robyn: Yeah, thanks for your insight today into such an important topic affecting so many of our elderly in society. Appreciate your time today, Larisa.

Larisa: Thank you so much, Robyn.

Robyn: You’ve been listening to law talks here on 4CRB, which you can hear every Friday morning from 9:00.