Planning for potential future incapacity
It is important for people of all ages to plan for potential future incapacity. Incapacity can arise from illness or injury and can be temporary or permanent.
If you lose capacity, your family will not have the ability to make financial, medical and lifestyle decisions on your behalf. Powers of attorney are legal documents that authorise people that you nominate to make decisions for you during your lifetime if such circumstances arise.
An attorney appointed under an enduring power of attorney (financial) has authority to make decisions about your assets and finances. You can appoint one or more persons as your attorneys. You can specify conditions, limitation or instructions in the document and you can specify whether your attorney’s power commences immediately or at some future point in time.
An enduring power of attorney (medical treatment) enables you to appoint a person to make decisions about medical treatment on your behalf. Your attorney can only make medical decisions on your behalf if you are unable to make the necessary decisions yourself. Your attorney can consent to medical treatment, elect between treatment options and can refuse consent to treatment if he or she believes it would cause you unnecessary distress or you would consider the treatment unwarranted.
An Enduring Power of Guardianship enables you to appoint a person to make lifestyle decisions for you if you are unable to make those decisions yourself. This includes decisions about where you will live and with whom and other health care and lifestyle matters.
Victorian Civil & Administrative Tribunal (VCAT) – Guardianship & Administration applications
You can only make powers of attorney if you have the necessary capacity to understand the nature and effect of the documents.
If you lose capacity and you have not appointed an attorney, it will be necessary for someone to apply to VCAT to be appointed as your administrator and guardian. The application could be made by a family member, friend or other interested person such as a social worker. An administrator appointed by VCAT has the authority to manage your assets and finances. A guardian appointed by VCAT has the authority to make lifestyle and health care decisions on your behalf. VCAT could appoint a person who you would not have appointed yourself, or could appoint a trustee company or public advocate to make decisions on your behalf.
For more information contact:
Justin Hartnett
Principal
Harwood Andrews
T: 03 5225 5220
E: jhartnett@harwoodandrews.com.au
Daniela Pavlovic
Senior Associate
Harwood Andrews
T: 03 5225 5227
E: mailto:dpavlovic@harwoodandrews.com.au