What options does a person have in dealing with future matters if they are incapacitated?

by The FindLaw Team

Many individuals choose to provide for the future possibility that they may be incapacitated either through illness or a mental issue that will prevent them from making sound decisions on their own behalf. When providing for the possibility of future incapacity, there are a number of options a person can take, such as Enduring Power of Attorney, enduring guardianship or living wills which are some options that a person may take, and which this piece will broadly cover.

Enduring Power of Attorney

When a person (principal) authorises another (Attorney) to undertake financial transactions on their behalf, they must have the mental capacity to do so when bestowing the Power. The laws relating to the Power may differ between the States and Territories, and using New South Wales as our legislative example, the Powers of Attorney Act 2003 (NSW) and its Regulations has two different forms of the Power which are the General Power of Attorney, which is terminated if a person no longer has mental capacity, and an Enduring Power of Attorney, which will still be valid even if a person loses mental capacity. There are a number of requirements that need to be fulfilled in relation to the Power and it’s important that anyone considering the Power, to talk to a legal practitioner beforehand.

Enduring guardianship

Enduring guardianship permits a person to appoint someone to make decisions on their behalf relating to where the person will reside, the type of health care the person is to receive, and consent to medical treatment are just a few of the matters related to enduring guardianship. The powers of enduring guardianship kick in when the person can no longer make decisions for themselves, as opposed to Power of Attorney which is primarily focused only on financial matters.

For an enduring guardianship to take hold, the person and the guardian must sign the necessary documents, and it must be witnessed by a legal practitioner who is licensed to practice in Australia or overseas, otherwise a Registrar in a local court can also be a witness.

Living wills

The term ‘living will’ is somewhat misleading in that it is not a document related to how a person’s assets are to be dispersed upon their passing, but rather, it is a written document relating to how a person is to be treated in the future if they are incapacitated. The more accurate descriptor for a living will is ‘Advance Care Directives’ and there may be some differences between the States and Territories in relation to such documents.

For any person wishing to make plans for the possibility of future incapacity, it’s essential that you talk to a legal practitioner to ensure that your interests are properly handled.


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