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Future Planning

FUTURE PLANNING

Enduring Power of Attorney

FOR PRINCIPALS
FOR ATTORNEYS

In Queensland people have the option of creating a legal document called an Enduring Power of Attorney to nominate others to act on their behalf and make decisions for them if they are unable. These decisions may include personal, health or financial decisions, which may be simple or complex.

The role of Attorney can be confusing. It is recognized there has been a lack of education specifically developed to assist Attorneys to understand their legal duties and responsibilities.

To make it easier for Attorneys to act appropriately in their role as decision maker, ADA Australia with the support of the Queensland government have created resources.

The resources below can assist Attorneys to understand EPOA document, any terms and when and how to make decisions for another. It can also help support those who may be considering agreeing to the role of becoming someone’s Attorney, to understand more about the role and what will be required of them should the EPOA become active.

Enduring Power of Attorney (EPOA)

Guiding Documents

The following documents can be found on the Queensland Government website

For more information about end of life matters such as advanced health directives, palliative care and organ donation in all states of Australia go to www.end-of-life.qut.edu.au

Health Fact Sheets and Links

Attorney Resources

Are you an Attorney under and Enduring Power of Attorney (EPOA) in Qld?

FOR SUPPORT AGENCIES AND SERVICE PROVIDERS

In your interactions with Attorneys (decision makers), it is essential for your staff to ensure that:

  • The terms of EPOA documents are being correctly applied
  • Attorneys are acting within the limits of their role
  • The General Principles are being applied to ensure the person’s rights are always protected
  • Staff understand and follow the correct applications of the EPOA documents
  • Staff are easily able to identify problems and make appropriate referrals

To support the above needs and ensure staff are asking the correct questions to gain information needed, a flowchart and intake form has been developed EPOA Flowchart and Intake Form

The Flowchart and Intake resource will assist staff to better understand:

  • The making of an EPOA
  • Using and EPOA
  • Actions of an Attorney

We encourage support agencies and service providers to also download and print the above Attorney educational resources for circulation to clients and Attorneys to promote understandings of Attorney duties and to protect the rights of individuals

WHO WE LINK WITH
EPOA Forms – Queensland Government Publications (EPOA forms): www.publications.qld.gov.au/ If you have questions about an Enduring Power of Attorney, the following contacts may be able to assist:

Advance Health Directives

AHD

In Queensland, adults have the option of creating a legal document, called an Advance Health Directive for Mental Health (AHD MH), which gives health professionals guidance about your views and wishes for health care treatments, in the event that you are unable to consent at the time a health decision is required.

An adult (principal) must have capacity to make the document, which means the adult understands the document, the consequences and options within the document, and when and how the document would be used.

The adult needs to work with a doctor to fill in the document, and then it must be witnessed by a qualified witness (JP, lawyer, Comm Dec).

An AHD is an Enduring document, which means it remains a legally valid document even if the adult has lost capacity. An AHD ceases to have any power once the adult has died.

An adult with capacity can revoke their AHD at any time.

Validly completing a new AHD automatically revokes a previously made AHD.

Within an AHD an adult may choose to appoint an attorney(s) for health decisions.

It is recommended the adult obtain independent legal advice before completing enduring documents, as they may inadvertently revoke previously made powers and directives.

Advance Health Directive for Mental Health

AHD MH

In Queensland, adults with lived experience of mental health issues have the option of creating a legal document, called an Advance Health Directive for Mental Health (AHD MH), which gives health professionals guidance about your views and wishes for health care treatments, in the event that you are unable to consent at the time a health decision is required. The purpose of the AHD MH is to assist the adult to express views & wishes about their treatment, and to allow the doctors to be guided by the adult’s wishes and experiences. This provides a more collaborative and person centred approach to recovery.

Like other legal documents, an adult (principal) must have capacity to make the document, which means that at the time the adult is completing the document the adult understands the document, the consequences and options within the document, and when and how the document would be used.

The adult needs the cooperation of a doctor to fill in the document, and then it must be witnessed by a qualified witness (JP, lawyer, Comm Dec).

An AHD MH is an Enduring document, which means it remains a legally valid document even if the adult has lost capacity.

An AHD MH ceases to have any power once the adult has died.

An adult with capacity can revoke their AHD MH at any time.

Validly completing a new AHD MH automatically revokes a previously made AHD MH.

Within an AHD MH an adult may choose to appoint an attorney(s) for health decisions.

It is recommended the adult obtain independent legal advice before completing enduring documents, as they may inadvertently revoke previously made powers and directives.

Information and Resources

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Elder Abuse Advocacy Page - Reuben's story

Ruben’s story

Ruben is a gentle natured Dutch speaking gentleman, who was living in an aged care home and was very unhappy. Ruben’s grandson Neils contacted the Older Persons Advocacy Network as he was concerned about his grandfather, claiming he had been moved into the aged care home unnecessarily and Ruben was now very isolated. Neils explained that his Aunty Dorma (Ruben’s daughter) was using Ruben’s inability to speak English to take his money. After gaining Ruben’s permission to become involved, through the use of an interpreter, an advocate met with Ruben and Neils at the aged care home to find out what was going on. It became clear that Dorma had taken her father Ruben to the doctor and used Ruben’s language barrier to get a medical directive that Ruben no longer had decision making capacity. This enacting his Enduring Power of Attorney document granting legal access to Dorma to manage all Rubens financial and personal affairs. Dorma had then sold Ruben’s house and moved him into an aged care home, where she asked the home to restrict access to his friends, thus isolating Ruben from people who could help him. The advocate assisted Ruben to see a GP (with an interpreter) to assess his decision-making capacity. The GP deemed him to have capacity, which enabled Ruben with the advocates help to stop Dorma accessing his money. Ruben then got a new phone and computer and has reconnected with his local friends and his family in his home country. He has also been connected to a Dutch speaking social group in the area.

Human Rights Advocacy Page - Aunty Lorna. Please only use lady in red.

Aunty Lorna’s story

Aunty Lorna explained that some of her family had moved in with her a few months ago to ‘help out’ after her stroke as she was unable to cope. She explained that even though they moved in she was still not getting any help. Aunty Lorna explained that she paid the rent, but she did not see any of her pension money anymore, as her large family used it for their needs. Aunty Lorna said that she did not want to upset her family, but she would like to have some money for herself. Aunty Lorna was also concerned about what would happen if she became unwell, whether her family would continue to pay the rent ensuring she would have somewhere to live. The advocate explained that they could assist her to look at her options. Aunty Lorna asked if an advocate could meet with her at her respite centre on one of the days she was there, so that her family would not know. The advocate reassured Aunty Lorna they would meet where she liked, and that the advocate would also not take any action without her permission.

The advocate met with Aunty Lorna and explained that she had a right to make her own financial decisions and that she could also ask someone she trusted to make decisions for her if she felt she was unable to make them for herself, by appointing them as her Enduring Power of Attorney for financial matters. Aunty Lorna decided that she believed her oldest daughter Karen (who did not live with her) would be the best person to make the financial decisions for her, which she felt were out of her ability. The advocate supported Aunty Lorna to appoint Karen as Aunty Lorna’s Attorney, so she could protect Aunty Lorna’s financial interests. The advocate also helped Aunty Lorna arrange some home care services to ensure she was cared for.

Human Rights Advocacy Page - Valerie

Valerie’s Story

Valerie contacted the Older Persons Advocacy Network as she was concerned that her daughter, who is acting in the role of Attorney under an Enduring Power of Attorney (EPA) Document, was misusing her money. Valerie told the advocate that she was no longer receiving bank statements, had no idea of what was being paid, and had received a letter from one of her utility providers stating she was in arrears, which had never happened before. Valerie was concerned that her daughter was overwhelmed by the EPA role and was unable to effectively manage the responsibility.

The advocate discussed all of the options available with Valerie. Valerie decided it would be best to revoke her Enduring Power of Attorney and appoint a new one. The advocate liaised with other services including an elder abuse specific legal service, which agreed to help Valerie revoke the EPA and write a new one. Valerie met with the lawyers, revoked her daughter as EPA and appointed a trusted friend instead. Once Valerie told her daughter about the change, her daughter revealed that she was overwhelmed by being the EPA and was relieved to not have to do it anymore. On a follow up phone call Valerie told the advocate that she was much happier now and she again felt confident with her financial management arrangements.

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ADA Law have a range of services that offer different types of support to eligible clients. To check if you are eligible for our service you can go to the following pages:

Human Rights
Elder Abuse
Disability Royal Commission
Mental Health Review Tribunal

For Aged Care and Disability Advocacy, please refer to

ADA Australia’s website.

Mental Health Review Tribunal Page - Anthony's story

ANTHONY’S STORY

Anthony is a 28-year-old man who has had a diagnosis of Depression for 10 years. Anthony lives by himself and accesses support from family and friends, as well as community support agencies. From time to time Anthony becomes very unwell and requires hospitalisation, and sometimes Electro Convulsive Therapy (ECT). When Anthony is this unwell he does not have sufficient capacity to consent to the ECT, so his treating team must apply to the Mental Health Review Tribunal (MHRT) for permission to provide the therapy.

Legal Aid appointed ADA Law as Anthony’s legal representative, to assist him with his MHRT hearing. His legal representative is Tanya.

Anthony meets with Tanya prior to his hearing, either by phone or in person, and they discuss what his views and wishes are in relation to ECT, and what is important to Anthony. Tanya and Anthony attend his MHRT hearing and ensure his views, wishes and concerns are discussed with the Tribunal and Anthony’s treating team.

Disability Royal Commission Page - Kiara's Story

KIARA’S STORY

Kiara is a young woman who has lived with disability since birth. During that time Kiara has had good and bad experiences, and has found that sometimes she is discriminated against because of her disability.

When Kiara was younger, she found herself in trouble with the police, and this led to her experiencing physical and psychological abuse by the systems which were set up to protect and support her.

Kiara has been able to work through that experience and now is feeling strong enough to be able to tell her story, in the hope that her story can be used to make a better system for other people.

Kiara is working with an ADA Law Disability Royal Commission Advocate, Trevor, and together they are documenting Kiara’s experience, and creating a submission for the Royal Commission. Trevor will assist Kiara to send the submission to the Commission, and if Kiara is given the opportunity to appear at the Commission, Trevor will accompany her and provide her support. Trevor is working with Kiara to assist her to speak for herself. If Kiara is not ready to speak, Trevor will be there to tell Kiara’s story.