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.

Related Articles

View All
Wills, Estates & Probate

Sporting Injuries, Head trauma and planning for the worst.

Gone are the days where someone was told to ‘get on with it’, if they suffered a knock to the head during...
Read More
Wills, Estates & Probate

DEATH AND TAXES – Do you have to lodge a tax return for a deceased estate?

Assets can include shareholdings, unpaid present entitlements from trusts, real property (including rental income) and...
Read More
Litigation & Dispute Resolution / Wills, Estates & Probate / Health & Aged Care

Do I need Probate? What is it?

When someone passes away, Probate is obtained by the executor of the deceased’s Will (or administrator if someone...
Read More
Wills, Estates & Probate

Planning to get away for the December / January break?

It’s a busy time and lots of people are travelling domestically and internationally  Sadly, it’s also a time when...
Read More
Wills, Estates & Probate

Why do you need a Grant of Probate or Letters of Administration?

First off, what’s the difference between Probate and LOA Probate is where a person, named as an executor in a Will,...
Read More
Wills, Estates & Probate / Family Law / Family Law Advice

The effect of Divorce on a Will

Separating or getting a divorce  Time to make a new Will! There are some couples who, whilst separated, are still...
Read More
Wills, Estates & Probate

Succession Planning – Doesn’t begin with just making a Will.

Scenario 1: ‘Robert’ is 45 and a director of his own property investment and management company in Melbourne  He...
Read More
Wills, Estates & Probate

Why Wills + Estate Planning Is Never Simple

Whether you’ve made your own will, used a post office will kit or had it made by a Lawyer, preparing a Will and...
Read More
Wills, Estates & Probate

Have you been left out of a Will? Curious where you stand?

The Administration and Probate Act 1958 (the Act) in simple terms places an obligation on the willmaker to make...
Read More
Wills, Estates & Probate

Probate & Covid-19

  RedCrest Probate The Probate Office had intended to launch its online platform in April 2020, however due to...
Read More
Wills, Estates & Probate

To be or not to be an… Executor…

You may not know that you have been appointed as an Executor until many years after the Will has been made and possibly...
Read More