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on Friday, October 18, 2024
As our loved ones age, we may face difficult decisions about their care. Is it safe for them to continue living at home? Do they have trusted friends, family members, or financial or legal experts to rely on?
That second question is especially important because older people may have or later develop health conditions that affect their ability to effectively manage their finances. That is why it is helpful to learn about guardianships, Enduring Power of Attorneys (EPOA) and Supported Decision-Makers in case an older person becomes unable to manage their affairs.
As one of Australia’s premier home care providers in aged care and disability, Right at Home have taken the time to explain these roles, why they may be needed, and how to approach arranging them.
Legal guardianship is the legal authority of an individual or entity to make decisions for an adult who cannot decide for themselves. A guardian makes healthcare, lifestyle, medical, and sometimes financial decisions for clients. Their primary role is to ensure the person has the same human rights and fundamental freedoms as others in the community. A guardian must be over 18 and not a paid carer. This may be a family member, or anyone genuinely interested in the person’s welfare. If there are no suitable candidates, a public guardian may be appointed.
The types of decisions they may need to make for someone can include:
A guardian is not able to make any decisions about money or other financial affairs unless they are also legally appointed to be the person’s attorney under the powers of an EPOA or private financial manager.
Australian guardianship law is the key regulatory mechanism for protecting the health of young people, adults with disabilities, and the elderly. Australia has guardianship and financial management laws for each state and territory. Australia has eight different guardianship regimes, which vary widely in their forms of regulation.
Australia has three primary legal options for appointing someone to manage another person’s money and affairs:
An enduring power of attorney is a legal document that allows a person to nominate someone to take care of their personal affairs or financial matters. The person nominated is called an attorney.
The power of attorney can be limited to cover specific matters and will come into force when stipulated, usually when the person named loses capacity to make decisions themselves.
A person can only make a power of attorney if they have the decision-making capacity to do so. This means that if a person no longer has decision-making capacity, a power of attorney cannot be made on their behalf, and guardianship or administration orders through the state will need to be sought.
For those who have not appointed an enduring power of attorney, money management under guardianship law is the job of an Administrator. Administrators are appointed in a similar way to guardians, under an administration order.
However, their role is to make decisions about how a person looks after their money including:
Under the Aged Care Act, an authorised representative is only required where an older person does not have capacity and is unable to provide consent for someone to represent them.
The legal documents that you need to provide My Aged Care to become an authorised representative shows them you can legally make health, personal, and lifestyle decisions for someone. The documents required vary from state to state.
Some common legal documents that My Aged Care need include guardianship, or any of the following documents that are supported by a letter from a medical practitioner stating that the person is unable to act on their own behalf.
Based on legal advice, medical evidence is required in addition to the above documents to establish an authorised representative, as they do not provide sufficient evidence on their own that the person has lost decision-making capacity. You will need to send this documentation to My Aged Care with the appointment of a support person form to become an authorised representative.
There are several factors that the guardianship board or tribunal will consider before deciding to appoint a guardian or administrator.
These include:
The rules are different in each state and territory, so contact the relevant authority where you live, or your legal adviser, for details on the guardianship and administration laws in your state or territory.
If an older adult anticipates or simply is concerned about losing the ability to manage their affairs, they can start this process themselves and name a guardian in advance. This is often done through a durable power of attorney or a living trust, where the older person can specify who they would like to manage their personal and financial matters if they become unable to do so themselves.
Naming a guardian or Decision-Maker in advance can provide peace of mind for both the aging adult and their loved ones. It will ensure that the older person’s wishes are respected and that the transition of responsibilities occurs smoothly without the need for court intervention. It is an effective way to maintain control over one’s future care and reduce the chances of disputes among family members or other affected parties.
The process can be daunting, especially for the senior involved, who may not agree they need this level of protection. However, the goal of decision makers is to ensure that your elderly loved one receives the care and support they need, especially when they’re unable to make decisions for themselves.
Claim your free one-on-one consultation with Right at Home’s Aged Care Experts through the Right at Home Community Program. Gain insights into available care services, Government funding options, and receive assistance in getting started.
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