WHAT CAN HAPPEN WHEN YOU DON’T HAVE A POWER OF ATTORNEY
This is an important question and one that I wish people knew the answer to so that they clearly understood the importance of putting these documents in place. Put simply, if you don’t have them in place and you can no longer make your own decisions, you – or, more to the point, your family or loved ones - are in a pickle.
Each state has its own body or tribunal where someone, normally a family member or close friend, would have to apply to be appointed to make decisions on your behalf with respect to your financial, legal, medical and guardianship needs.
Some years ago, I acted for two adult sons. Their father, who we shall call Bill, had suffered several falls at home. His much younger second wife determined she no longer wished to care for Bill and returned overseas to her home country to reside. Bill was taken to hospital because of his injuries and tests were conducted to ascertain the cause of these frequent falls, together with other cognitive issues that were of concern.
On receiving the results of the tests, the medical specialists determined that Bill no longer had the capacity to care for himself and make his own decisions. Given that Bill no longer had the capacity to put in place a power of attorney and he was a Victorian resident, his sons had to make an application to VCAT to have them appointed administrator and guardian.
The medical advice stipulated that Bill could no longer care for himself in his own home, and with no family member being in a position to have Bill reside with them due to extensive work commitments, the sons searched for a suitable nursing home. A home, with a rare available opening for a new resident, was located, much to the family’s relief. However, as with most nursing homes these days, one of the entry requirements was that a valid enduring power of attorney was required on acceptance to the nursing home. Bill did not have the converted document, so was refused admission until an administrator and guardian were appointed by VCAT.
Given the time it took to prepare the appropriate document and obtain the reports from medical staff and social workers that VCAT required to be submitted with the sons’ application, together with a backlog in the tribunal’s hearings, it was a number of weeks before the sons obtained an order appointing them as their father’s administrator and guardian. Bill remained in his local hospital during this time; after the VCAT order he was finally able to be moved to his nursing home.
As you can see, this is a complicated process and can cause undue stress on family members and loved ones. Fortunately, in Bill’s case he had family members who were looking after his best interests and were able to make solid decisions about his care, finances and legal matters. Not all people have that luxury, especially when it is ultimately in the hands of the tribunal in determining who is the best person to look after your interests.
I often compare power of attorney documents with insurance. You put them in place and hope that you never need to use them – they are there just in case. The reality for most of us is that there are certain people we would like to care for us if we were no longer able to care for ourselves and make our own decisions. Power of attorney goes a long way in providing peace of mind that we are covered.