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A power of attorney gives another person
the legal right to act on your behalf if you
become incapacitated in some way and are
unable to make your own decisions. People
generally give this power to their spouse,
the executor of their will or an adult child.
It is also worth appointing a substitute
attorney in the event that your frst choice is
not available or able to do the job. You can
appoint an independent trustee but this
can be costly.
A general power of attorney is
generally used for short-term or
specifc needs such as purchasing a
property while you are on holidays,
but it is not legally valid if you lose
mental capacity. For dementia
sufferers there are three powers of
attorney that may be appropriate:
> Enduring fnancial power of
attorney. This is similar to a general
power of attorney but remains in force
even if you become mentally incompetent.
For example, if you develop dementia your
attorney can sign documents, withdraw
funds and carry out fnancial functions on
your behalf. It remains legally valid until
you cancel it (provided you are mentally
competent to do so), you die or it is
cancelled by a court or tribunal
> Medical enduring power of attorney.
This authorises a person to make healthcare
decisions for you if you no longer have
the capacity to do so. For example, your
attorney might be called on to decide if you
need an operation or certain medications.
In some states they can also refuse medical
treatment on your behalf. It remains valid
until you cancel it, sign a replacement, you
die or it is cancelled or suspended by the
appropriate court or tribunal
> Enduring power of guardianship. This
authorises a person to make personal and
lifestyle decisions for you if you become
mentally incompetent. It covers decisions
such as where you live and the type of care
you receive. If you don’t have an enduring
power of guardianship and you lose capacity
to make decisions a tribunal may appoint an
independent guardian even if family members
are willing and able to act. This is especially
likely if there is confict in the family.
Not all powers of attorney are available
in all states and, in some cases, medical
powers may be included in an enduring
power of guardianship. Most people will
need to seek legal advice to determine
which power of attorney is the most
appropriate for their circumstances.
Because an attorney is such an
important person in your life when
decisions need to be made it is important
that they understand your lifestyle
choices. For example, if you want to stay
in your own home for as long as possible
and pay a carer rather than go to a
nursing home, then you should make this
clear from the outset.
up. The other suggestion is that we take on
more of the day-to-day administration,”
Hutton recommends seeing couples together
so that wills, powers of attorney and other
estate planning issues can be discussed,
especially where one partner is showing
signs of dementia.
“I don’t directly mention dementia but I
talk about an enduring power of attorney as
a way of keeping things ticking away. Usually
people pick up on the suggestion and I’ve
referred them to a lawyer,” he says.
The loss of capacity is often frightening
and stigmatising and people can be
offended and angry when the issue is raised.
Alzheimer’s Australia suggests there are ways
to gently approach the subject of a medical
assessment with your clients without causing
offence. If you can offer a sound business
reason for an assessment your client will
be more inclined to listen. Point out that an
assessment can act as a kind of insurance to
protect against future challenges relating to
fnancial and legal matters.
SUPPORT FOR YOU
Alzheimer’s Australia can develop
customised education sessions for
organisations and businesses to tackle
issues arising from dementia. There are
also practical tips and advice on how
to assess someone’s decision-making
capacity in the government’s Capacity
Toolkit (available from Alzheimer’s Australia
on 1800 100 500).
If you are unsure how to handle a
particular client or situation, contact
Alzheimer’s Australia 1800 100 500 or visit
Danielle White is the education and sector
development manager for Alzheimer’s Australia
NSW. Barbara Drury is a fnancial journalist.
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