Powers of Attorney & Incapacity Disputes
Powers of attorney are documents you can sign now to appoint the person of your choice to make decisions for you if you lose capacity as a result of an illness, injury or accident.
Powers of attorney operate for the period of incapacity. There are three main types of powers of attorney - medical, personal and financial:
Medical power allows you to nominate a person to make medical and routine healthcare decisions for you.
Personal power covers lifestyle and personal decisions, such as choosing where you live, who looks after you and who can see you – similar to the decisions a parent makes for a child.
Financial power covers legal and financial decisions, such as paying your bills, selling your assets, making investments and any legal decisions for you.
Our advice is not just about the formal requirements and validity of these documents, but about practical aspects, like who is the right person to take on these roles and what special permissions or limitations they should have and any conditions or directions specific to your life situation.
For example, if you own your home but you live there with your spouse, should the spouse be able to stay in your home rent free if you are in rehab or aged care or should they pay rent or expenses? If your power of attorney document says nothing, the spouse may need to pay rent as they occupy a property they are not the legal owner of, or they may be asked to vacate the property as the assets must be maximised for the benefit of the person without capacity (and it’s not in your best financial interests to have your spouse living in your property rent free…).
-
An ACD is a form that formalises your medical advanced care plan, it contains directives in relation to your beliefs, values and preferences for what types of medical treatments you provide consent to.
This document is important because it is a legally binding document once signed, and health professionals and your family members must follow what you direct, your decisions cannot be overridden by anyone’s decisions.
If a person has lost the capacity to make decisions, health professionals will firstly look at whether you have an advanced care directive before they provide you with medical treatment. If you have an ACD, then the health professionals will follow your directives contained in the document.
A medical power is different to an advanced care directive because, a medical power authorises a person to make decisions on your behalf, whereas an advanced care directive formalises your consent and preferences for medical treatment.
If you do not have an advanced care directive, the health professionals will ask your medical treatment decision maker to make the decision for medical treatment on your behalf.
-
Disputes can also arise about powers of attorney. We have extensive expertise in handling these.
Examples of common disputes are an attorney not complying with his or her obligations, failing to fulfil their duties or children disagreeing about the best care for their parent.
We have successfully settled many such disputes quickly and with the least amount of pain and acrimony. All of this is achieved in the most cost-effective way.
Disputes can also arise when there are no powers of attorney, such as who will administer the affairs of a person who has lost capacity or who will make medical and lifestyle decisions for that person.
This is usually resolved by approaching the Victorian Civil and Administrative Tribunal (VCAT) for an appointment of the decision maker or for directions.
We have handled many such applications (contested and uncontested) and are available to assist with such matters in a cost-effective and practical way. We can take the "sting" out of these matters for you.
Another common application made is by family members on behalf of a person who was born without capacity, but who needs a decision maker to take care of them once they are over 18.
As it is very difficult to properly estimate how a dispute may evolve, disputes are usually handled on hourly rates. See our hourly rates on our fee page. We are also able to negotiate fixed fee retainers for dispute work.
Get Started Today
Powers of attorney provide you with an opportunity to choose the person you want to occupy these roles, as opposed to relying on the defaults in legislation or having to undergo an expensive process where the courts choose who to appoint for you or make the medical, personal or financial decision for you.
See below our Information to Keep Safe guide and our Disputes, Mediation and Litigation services for more information.
Curious about the cost? View our Fee Schedule.
If you have questions about the process, please contact us for an obligation-free appointment to discuss your circumstances.