Who Should Make the Decisions If You Become Incapacitated?

Do you know who would make your decisions for you if you became incapacitated? A will can deal with the position if you die. But it’s what happens when you are alive and unable to make decisions that creates the biggest problems.

In the same way that income protection is a higher priority than life insurance; what happens if you can’t look after your money or health is a higher priority than a will. If you want someone to look after your finances or other impportant decisions in the event you are unable to do this yourself, you need to appoint someone to do so. 

Relevant Decisions

The most common type of decision people think about are financial ones. But there's more to it than that.  Specifically, we also need to think about personal matters (such as accomodation, diet, and living arrangements), medical matters (arranging and consenting to medical treatment), and medical preferences (to refuse, or require the withdrawal of, medical treatment).

The rules on this vary from State to State.

Power of Attorney

A Power of Attorney enables you (the Principal) to authorise someone else (the Attorney) to carry out financial transactions on your behalf. You must have mental capacity to understand what you are doing when you make the Power.

A standard or general Power of Attorney will cease to have effect if you lose your mental capacity. If you want it to continue after you lose your mental capacity you will need an enduring Power of Attorney.

There are some subtle differences in the drafting and signing requirements. An Enduring Power must have your signature witnessed by a prescribed person such as a solicitor, barrister, Registrar of the Local Court or a licensed conveyancer.

Appoint someone you trust and is willing and able to act when the time comes. Your attorney in effect gets to act as if they were you. So make sure you know and trust them well. It can make sense to keep the Power of Attorney with your lawyer or someone else you trust so the attorney has to go get it at the time as a protection.

If the attorney needs to deal with real estate, the Power will need to be registered with the Land Titles Office. This can be done at the time.

In Victoria, Queensland, and the ACT an enduring power of attorney can also deal with personal matters. In Queensland and the ACT an Attorney can also deal with medical matters.

Enduring Guardianship

If you live in New South Wales, Tasmania, or Western Australia, your Power of Attorney deals only with money and legal matters. 

If you want someone to deal with personal matters, you will need to create an Enduring Guardianship. Your Guardian will make decisions on your behalf about where you will live and what health care you want, and to consent to medical or dental treatment. It only becomes operative if you are unable to make decisions yourself.

Both the person making the appointment and the guardian must sign an appointment of enduring guardian form, and it must be witnessed by an Australian solicitor or barrister or the Registrar of the Local Court or overseas-registered foreign lawyer.

In South Australia you will need an Advance Care Directive to deal with personal and medical matters.

Medical Preferences

You can leave instructions for your Guardian or attorney or others about your future medical treatment if you were to become incapacitated. Usually this deals with when you want to refuse, or require the withdrawal of, medical treatment generally or a particular kind of medical treatment. This also binds relevant health care professionals.

You might for example, specify what measures are, or are not to be taken to prolong your life.

State by State

Legal and Financial matters

Personal matters (accommodation, health care, diet, and daily living)

Medical Matters

Medical Preferences 

Get the right advice