Incapacity: Choose Who Makes Decisions for You

Clare Hesbrook & Ilana Kacev

Estate Planning isn’t just about your Will, equally important are the documents in which you choose and who makes decisions for you if you lose capacity during your lifetime.

Choose Who Decides

If you want to choose who makes decisions for you regarding your finances, property, lifestyle and medical treatment, it is essential that you have in place:

  • An Enduring Power of Attorney and an Appointment of Medical Treatment Decision Maker (if you live in Victoria); or
  • An Enduring Power of Attorney and an Appointment of Enduring Guardian (if you live in New South Wales).
Losing Capacity

Currently it is estimated that almost half a million Australians are living with Dementia and these numbers are expected to continue to rise. Aside from Dementia, there are many other reasons why you may lose capacity to make decisions for yourself.

Public Trustee & Guardian Appointments

On 14 March 2022, Four Corners aired an episode investigating the difficulties encountered by those who did not have these documents in place, at a time when they were deemed to have lost capacity.

The public trustee and guardian were appointed to take control of their finances and make decisions about their lifestyle, including where they lived.

The Four Corners episode highlights the importance of proactive estate planning and especially, making arrangements in the event of your future incapacity.

Since the Four Corners episode aired in 2022, further investigations reveal the difficulties faced by those under the management of public trustees and guardians. Some states have now launched investigations and reviews about their public trustees as well as their fee models and it is now a matter of waiting to see what recommendations will be made.

For further information:

Public Trustee leaves pensioner without money for food and takes 40 per cent of his income - published by ABC News (29 Mar 2023)

Peering into the secret world of state care reveals bleak picture, but things are changing - published by ABC News (14 May 2023)

What it means when you have a Power of Attorney and Appointment of Enduring Guardian/Medical Treatment Decision Maker in place:

  1. You decide who makes decisions about your money and lifestyle. You can choose the people who care about you and respect your values.

  2. You decide how your chosen attorneys and guardians act and when their powers come into effect. You can provide directions about how they should act in end of life care decisions for example.

  3. You preserve your wealth. A public trustee and guardian takes payment for their services from your assets. When you choose your own attorney and guardian (unless you choose to appoint a professional attorney) you do not generally pay for acting.

Taking positive action to put your estate planning affairs in order means that you get to decide who makes decisions over your life, rather than having it decided for you.

How we can help

If you have questions about your estate planning or if you are looking to update your estate plan, our friendly Wills and Estate Planning experts are happy to help.

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