By Kirsty Brealey

27 March 2020

Have you thought about who will make decisions for you if you can't?

You’ve got your toilet paper, sanitiser and household essentials organized, BUT!!

Beyond toilet paper, hand sanitiser and household essentials, what else can you do to prepare for life’s unexpected twists?

More specifically, if you were isolated, detained, very ill or quarantined for weeks, how would you fare?  Do you have anyone legally authorised to deal with your finances, medical or other needs if you aren’t able to? If you are self-employed, is there someone who can step into your shoes and carry on your business in your absence?

PROPER planning helps reduce the negative impact current events might have on your everyday life.  This involves preparing legal documents that appoint another person to make decisions on your behalf when needed.

Enduring Powers of Attorney (“EPOA”)

An EPOA will enable the person you have appointed (‘the attorney’) to make decisions on your behalf about financial and/or personal matters even when you don’t have the legal capacity to do so.

Financial matters include anything relating to your financial or property affairs, such as paying expenses, undertaking real estate transactions & making money available to you for your personal use.

Personal matters are matters relating to your personal or lifestyle affairs such as where and with whom you live.

You can include conditions and limitations regarding the type of decisions to be made on your behalf and you can direct when the power starts, i.e. immediately, upon incapacity or on a specified date.

These powers of attorney cover you individually but do NOT assist if your business is run by a company. A different form of attorney must be given by the company.

Medical Treatment Decision Maker (“MTDM”)

If you don’t have decision making capacity to consent to a proposed medical treatment (and no Advanced Care Directive), your health practitioner will consult your medical treatment decision maker to make such decisions on your behalf.

You can appoint up to four people (over the age of 18 years with decision making capacity) to make decisions about medical treatment on your behalf.  Medical treatment includes treatment with physical or surgical therapy, treatment for mental illness, treatment with pharmaceuticals and approved medicines and extends to dental treatment.

You can include limitations or conditions regarding how decisions will be made, i.e. specifying or limiting the people whom the decision maker may consult with.

Advanced Care Directive (“ACD”)

An ACD is sometimes referred to as a living will. It enables you to formalise your wishes for when you are no longer able to make decisions for yourself. If validly executed, it provides an outline of your preferences regarding your end of life care, beliefs, values and goals.  If you have firm ideas about how you want to live your life and are concerned that in a crisis your loved ones might struggle to decide the best course of treatment for you then the wishes contained in your ACD will prevail.

You should consult with your treating medical practitioner as she/he will provide guidance as to what to record in your ACD and they are required to witness your ACD for it to be valid.

What if you don’t have an advanced care plan but need one?

If you become incapable of making your own decisions and do not have a valid EPOA, MTDM or ACD, the Victorian Civil and Administrative Tribunal (“VCAT”) has the power to appoint someone to make decisions on your behalf.  This may be a complete stranger who knows nothing about your wishes, it will take additional time and may be costly.

Each of the above documents operate independently, having one will not provide full coverage.

Want to know more? Arrange a telephone conference or email Kirsty Brealey from our Wills, Estates and Probate team.

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