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What happens if you lose mental capacity and can no longer make decisions for yourself? How to choose a guardian to make decisions about your medical treatment or lifestyle choices and what to do if you are concerned about a loved one’s mental capacity

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Do you have someone appointed to “have your back” if something unexpected happens and you can’t make decisions for yourself? Appointing a guardian in the event you lose mental capacity is extremely important for everyone to consider, no matter their age or health status. This week on Radio 4CRB, Attwood Marshall Lawyers Legal Practice Director, Jeff Garrett, joined Robyn Hyland to discuss prevention and intervention strategies people can use to protect their best interests in the event they lose capacity.

The role of a guardian

If an adult has impaired mental capacity for making important financial or lifestyle decisions, then someone else will need to make decisions for them.

Under Queensland’s guardianship system, someone can be given the authority to make medical, personal, and financial decisions for someone else who lacks the capacity to do so whether it be under an Enduring Power of Attorney, or if the Court appoints an Administrator, such as the Public Trustee or Guardian, to take on this role.

New South Wales is a little different, in that if you want to appoint someone to make decisions for you in the event you lose the capacity to make medical or personal decisions for yourself, you need to complete an Appointment of Enduring Guardian, which deals with personal and health-related decisions, in addition to a Power of Attorney, which deals with financial decisions.

It’s important to review any documents you have in place if you move between states to ensure your documents align with the state law relevant to where you live.

How to select the right person to be your guardian

People should anguish over this decision. It is imperative that who you appoint to the role is the right fit and is someone that you trust implicitly to make the best decisions for you.  

It may seem logical to appoint your spouse or partner, but this may not be the right choice for everyone.

You may also feel compelled to appoint all your adult children to act equally, but this can also have significant consequences if your children do not get along or if you do not believe that your children will have your best interests at heart.

Although more than one guardian can be appointed and may be a good option to ensure they keep each other in check, you should not feel you have to appoint “all children” to be fair, it is about what is in your best interests, not about being fair.

If you appoint multiple people to be your guardian and they are unable to make decisions together, an application will likely be made to the tribunal in your state, QCAT in Queensland or NCAT in New South Wales, to have the guardianship taken over by the public trustee

Guardians who abuse their position of power

This week, on 15th June, we acknowledged World Elder Abuse Awareness Day.

There is no doubt that some issues that arise with guardianship also involve abuse of that power.

Elder abuse is considered any act which causes someone harm and is carried out by a person that the person knows and trusts, such as a family member, friend, or carer.

Unfortunately, some guardians take advantage of people in their care.

Whether that mistreatment is of a financial nature, with guardians misusing bank accounts they have access to, or if it is of a physical, or psychological nature, by neglecting or hurting the person they are meant to be looking after, this type of abuse does happen.

It isn’t just family members appointed to the role of a guardian who can abuse it. There have been countless horror stories about people under the management of the Public Trustee or Public Guardian who have been neglected, cut off from their own finances unable to make ends meet, or stuck in a care facility against their wishes.

It all comes back to making sure whoever you appoint to this extremely important and powerful role is someone that you wholeheartedly know will look after your best interests and make the types of decisions you would otherwise make for yourself.

What to do if someone believes their parent or a loved one has lost capacity

The slide into losing capacity can be very difficult to deal with. Diminishing capacity can be subtle, and the person concerned may have no awareness that it is happening to them.

Not all family members have the medical evidence to prove a loved one has lost mental capacity and it can be difficult to encourage a loved one to be assessed by a medical professional to determine their capacity.

Some of the behavioural traits that someone may exhibit who has diminishing capacity include:

  • Short-term memory loss or signs of confusion
  • Paranoia that people are stealing from them when they have in fact misplaced their own belongings
  • Exhibiting hoarding behaviour
  • Declining physical health
  • Declining mental health

No one should make assumptions that someone has lost their mental capacity just because they may be making decisions that they do not agree with or otherwise feel are unwise or unusual.

However, if you are worried that someone you care about has lost the capacity to make important decisions for themselves, then you can seek the appointment of a guardian by making an application to the tribunal in your state or territory.

The process can be expensive and stressful. The process involves preparing forms, affidavits and reports to submit to the tribunal. Even after going through this process, in many cases, the tribunal will default to appointing the public trustee to manage that person’s affairs.

Be careful when making an application of this nature. If there is no medical evidence that someone has lost their mental capacity and you proceed with your application and are unsuccessful, you could rack up significant legal feels and be hit with a cost order against you.

This happened in a recent case, WJ [2021] QCAT 450, where a daughter, who had a fragile relationship with her father, sought to appoint a guardian for her father who she believed had lost the mental capacity to make decisions for himself.

The daughter was self-represented in her application, and without any medical evidence to support the application, largely relied on her own opinion on the matter.

The father defended the application fiercely by engaging two barristers and a solicitor, resulting in significant legal costs to the value of $409,000.

Although QCAT agreed that there should be an order for costs, the court was highly critical that the father had engaged 2 counsel and a solicitor when a competent solicitor would have been enough to defend the application. 

What can go wrong if the Public Guardian steps in

It is well documented in all states and territories that the public trustees, who are supposed to be looking after our most vulnerable people in society, are not doing their job correctly. They have been found to charge excessive fees, not answer the needs of the people they are looking after and fail to communicate with the families of those people.

As the public trustees are put through internal and external investigations, we can only hope that this will start to change, and they will start to live up to the community’s expectations.

Read more about the failures of Public Trustees:

Attwood Marshall Lawyers – helping you plan for the future and protect your best interests

Everyone, no matter their age or health status should have their most basic legal documents in place to ensure if the unexpected happens, and you can no longer make financial and health decisions, that someone who knows what you want will be able to make those decisions for you.

This is not only important as you age and your health begins to deteriorate, but for everyone. Accidents can happen every day, and if you were involved in an accident or suffer a sudden illness that affects your decision-making capabilities, you would want to know that someone can immediately step in to take control of your affairs and look after you.

It is a simple process to draft an Enduring Power of Attorney or Appointment of Enduring Guardian, to document your wishes and appoint your chosen guardian.

By doing so, you can have peace of mind that someone has got your back when you need them most, and that the Public Trustee will not be the ones to step in and take control of your affairs.

To discuss your estate planning needs, contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 anytime.

You can also make an appointment with any of our lawyers by visiting our website and using our online booking app. Our lawyers are available to meet with you at any of our conveniently located offices at CoolangattaKingscliffRobina Town CentreBrisbaneSydney, or Melbourne.

Read more:

The issue of testamentary capacity when making your Will

Mental capacity issues in day to day living and what can happen if you don’t have an Enduring Power of Attorney

Public Trustee’s neglect and deliberate isolation of vulnerable people exposed by 4 Corners investigation across Australia. How to avoid the Public Trustee interfering in your life!

A Britney-sized battle: What can be done when Attorneys or our decision-makers behave badly?

 

 

 

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