Legal Guardianship is an important position when caring for an elderly person moving into an aged care nursing home.
A Guardian for an aged care resident is usually a close friend, relative or professional guardian.
A Guardian will make a range of critical decisions on behalf of the person moving into an aged care nursing home.
Such decisions may include lifestyle decisions, health decisions and medical decisions.
Financial decisions will generally be made by an Administrator or Public Trustee.
An authority given to a person in respect of another can also be as a Power of Attorney.
A Power of Attorney is the most formal appointment of having someone manage your affairs.
An Enduring Power of Attorney can be immediately enforceable or commence after a specific event, such as after a person loses mental capacity.
Enduring Power of Attorney
Helping an elderly person who no longer has capacity with their everyday personal and financial affairs can be difficult without an Enduring Power of Attorney in place.
An Enduring Power of Attorney is designed to allow one person to appoint another to make financial, medical and personal decisions on their behalf in the event that they are unable to do so themselves.
An example of this would be due to failure of cognitive health or loss of capacity.
An Enduring Power of Attorney can only be put in place before a person loses mental capacity and can be enacted once a person loses capacity.
It is important that all involved are comfortable with who will make decisions in certain circumstances and any limitations or restrictions included in the Powers of Attorney documentation.
Ideally, a Power of Attorney document should be drawn up by an estate planning specialist solicitor to reduce the risk of challenges, ambiguity or being deemed legally invalid.
Generally, estate planning documentation ‘packs’ obtained from places like newsagencies are not adequate replacements for professionally constructed documents.
Failure to have the correct Enduring Power of Attorney (EPOA) documentation in place will make it very difficult for any decisions to be made on behalf of a person who loses capacity.
Enduring Power of Attorney Responsibilities
The responsibilities of an Enduring Power of Attorney in Australia may differ between States.
However, the main responsibility is that the attorney acts in the best interest of the person they are representing (the donor).
This may include making financial decisions on their behalf, including paying bills, completing tax returns and taking care of property and assets.
It can also include looking after their lifestyle, housing and health needs.
A Power of Attorney should always keep accurate records of all transaction dealings.
Other than out-of-pocket expenses, the Power of Attorney cannot be paid for work done in the capacity as an Attorney.
Furthermore, the Attorney has no right to any potential inheritance prior to the donor’s death.
Should a person without an EPOA lose capacity and require someone to manage their affairs, a guardian or administrator will be decided for them.
Guardianship and Administrators for Aged Care
A Guardianship Board or Tribunal will appoint a Guardian or Administrator on behalf of the person who is unable manage their own affairs.
Permission will need to be granted by the Courts in the form of Administrative Orders to a person who the Courts believe is capable of making the right decisions and acting in the person’s best interest.
Leaving it up to the Courts can create tension and disputes amongst families and is often a time consuming process.
Legal Guardians are generally responsible for the lifestyle, medical and health well-being decisions, including where the person they are acting on behalf of should live.
An Administrator is responsible for property and financial matters.
The Courts will appoint a Legal Guardian or Administrator for a someone based on certain criteria.
The criteria includes the ability of the individual to care for themselves, medical or health conditions affecting their ability to make their own decisions and whether it is in their best interest to have someone appointment to act on their behalf.
If you have elderly parents, relatives or friends, there is no better time than now to see what arrangements they have made to conduct their affairs should they lose capacity to do so themselves.
Where to From Here?
If you’re feeling confused or overwhelmed with transitioning a loved one into aged care, please do not hesitate to call one of our specialist aged care advice, Shane or Suzanne, on 1300 944 011 to see if they can assist.
Importantly, Power of Attorney, Guardianship and Administrative Orders differ from State to State in Australia.
For information relating to the legal Guardianship of another person in their State, refer to the websites below:
New South Wales (NSW) – Guardianship Division
Australian Capital Territory (ACT) – Wills, Estate Planning & Power of Attorney
Northern Territory (NT) – Adult Guardianship and Orders
Western Australia (WA) – Guardianship and Administration
Victoria (VIC) – Guardianship and Powers of Attorney
Tasmania (TAS) – Guardianship and Administration Board
South Australia (SA) – Guardianship and Administration
Queensland – Guardianship for Adults