Do You Know What Happens If You Lose Mental Capacity?
Your Will sets out your wishes regarding your personal affairs only after your death. However, what happens as you grow older or become unable to care for yourself whether due to age, disease or accident?
In such situations, Enduring Powers of Attorney (“EPAs”) and Enduring Powers of Guardianship (“EPGs”) can be indispensable. EPAs and EPGs can assist in situations where a person is still living but may not have the ability to make decisions regarding their finances or health and treatment or may simply require some assistance to make those decisions.
Further, putting in place arrangements while you still can for another person to manage your affairs and treatment, may relieve some of the burden that your friends and family may otherwise suffer in such difficult situations.
What is an EPA?
An EPA is a legal document that enables anyone who is over the age of 18 years and has legal capacity (“the Donor”) to give another person (“the Donee”) legal authority to make financial and/or property decisions on behalf of that person while they are living.
The Donee, once appointed, will have the power to make decisions (in the best interests of the Donor) with respect to the general expenditure of the Donor’s funds, payment of debts, receipt of income, taxation, Centrelink entitlements and can deal with any real property registered to the Donor (i.e. sell, lease and generally deal with third parties).
What is an EPG?
An EPG enables a competent adult (“the Appointor”) to appoint another person (“the Enduring Guardian” or “Appointee”) to make personal, lifestyle and treatment decisions on their behalf.
Treatment in this context means any medical, surgical or dental treatment, including life-sustaining measures and palliative care. A treatment decision is one that enables the guardian to consent to or refuse consent to provide any treatment. Personal and lifestyle matters may include where a person lives and the type of support services they receive.
What happens if you do not have an EPA or EPG?
Where a person has not made an EPA and there is doubt about their decision-making capability, any person may lodge an application for an administration order with the State Administrative Tribunal to act as that person’s attorney.
Where a person has not made an EPG and becomes incapable of making treatment and lifestyle decisions, the Guardianship and Administration Act 1990 (WA) provides for a hierarchy of persons who may be called on to make non-urgent treatment decisions or who can apply for a guardianship order from the State Administrative Tribunal. The first person in the hierarchy is an enduring guardian appointed under a valid EPG.
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