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Legal issues for residents
- What is a power of attorney?
- What is guardianship?
- Who needs administrators, financial managers and estate managers?
- How guardianship boards & tribunals work
- Your will
- What is a nominee?
- Legal issues for people with dementia
However, it may not be necessary for you to make any of these arrangements. You may wish to continue managing all your affairs yourself, or you may only wish to make one or two of these types of arrangements. This section gives you information about different kinds of arrangements.
What is a power of attorney?
A power of attorney is a document that gives a person nominated by you the power to act on your behalf. It allows the attorney to sign or do anything that you yourself can legally do, subject to any conditions or limitations stated in the document. A power of attorney enables your affairs to be managed by the attorney when you prefer not to conduct them personally. Powers of attorney can be used for almost any purpose, including operating a bank account, paying a bill, to collect debts, vote at meetings or any other function which can be lawfully delegated. For example, if you find it hard signing documents through loss of vision or unsteady hands, a power of attorney lets you delegate the management of your affairs to someone you trust.A general power of attorney does not give your attorney the power to make personal, medical or lifestyle decisions for you. You may choose to execute an enduring power of attorney or appoint an enduring guardian for this purpose.
To give a valid power of attorney, you must be mentally competent and you must understand the nature and effect of the power being granted. You can revoke a power of attorney at any time, as long as you continue to be mentally competent. A general power of attorney ceases to have effect if you become mentally incompetent, but an enduring power of attorney does not automatically cease to have effect if your mental capacity deteriorates.
If a person is unable to manage their own legal and financial affairs due to mental incapacity and does not have a valid enduring power of attorney, it may be necessary for the Guardianship Board to appoint an administrator to make those decisions for the person.
An enduring power of attorney allows you to delegate the management of your affairs even if you’re no longer able to understand the implications such as if you become mentally incapacitated. However, an enduring power of attorney can only be given while you’re able to understand the nature and effect of the document. There are special rules about the creation of enduring powers of attorney and the responsibilities of the attorney.
What is guardianship?
Each state and territory has a guardianship board or tribunal, which has powers to appoint a guardian or administrator for adults who do not have the capacity to make decisions for themselves.A guardian is a legally appointed substitute decision maker who, subject to the powers granted, may be able to make lifestyle decisions, such as where a person should live, consent to medical and dental services and health care generally. A family member or friend can be appointed as a guardian. In some circumstances, where it is not appropriate to appoint a private guardian, the board or tribunal has the option of appointing the Public Guardian, who is usually a statutory official.
An administrator or financial manager is responsible for making financial decisions. Usually, if a person’s financial affairs can be managed informally and in the person’s best interests, the board or tribunal will not make a formal appointment of an administrator or financial manager. A family member or friend may be appointed as an administrator or financial manager who will be supervised either by the guardianship board or tribunal or in some states and territories, by the Protective Commissioner.
If there are problems dealing with the affairs of the person you care for, or there is conflict in the family about this person’s best interests, you may wish to find out more information about the role of the guardianship board or tribunal in your state or territory.
In some states and territories other formal arrangements are available, including medical guardianship and enduring power of medical guardianship.
Who needs administrators, financial managers and estate managers?
A person may need an administrator, financial manager or estate manager if they are unable to manage their own legal and financial affairs due to mental incapacity and they have not given someone a relevant enduring power of attorney, and:- real estate must be sold or leased
- the bank won’t allow anyone else to operate their account
- they are being financially exploited
- they are suffering because of mismanagement of their funds
- other legal documents need signing, or
- they have a large amount of money or other investments to look after.
How guardianship boards and tribunals work
Each state or territory has a board or tribunal that will determine whether a person is capable of handling their own affairs, and whether an administrator, or a financial or estate manager should be appointed.The board or tribunal will consider the person’s best interests when deciding who to appoint as the administrator or manager. Other things that may be considered include the person’s wishes, the size and complexity of the estate and the qualities and capabilities of potential administrator.
The board or tribunal may appoint a private manager to manage your affairs, or it may appoint a public official, such as those from the Office of the Protective Commissioner in New South Wales, or the State Trustee in Victoria.
If a public official is appointed, they will charge a fee for administering the person’s affairs. If a private person is appointed to manage a person’s financial affairs, they will be supervised by the public official, who will charge a fee for this supervision.
Your will
It is important to have a will so that your estate is distributed in the way you want.It’s a good idea to provide an aged care home with the name of the executor of your will, so that the information will be available if it’s needed, for example, to finalise accounts or repay debts owed by your estate.
A living will helps those who are looking after a person to follow their wishes and preferences for their comfort, dignity and treatment during critical and terminal illnesses, as far as possible.
In some states, living wills or advance health directives allow a person to state their preferences about their care at these times, for example, about the use of life-support systems. Living wills or advanced health directives are known by different names in some states or territories.
What is a nominee?
You can nominate someone to act on your behalf in dealings with the Department of Health and Ageing about your care fees. To appoint this nominee, you should complete an Appointment of a nominee form which is available from the Health and Ageing website, or your aged care home. This form is different from the one used by Centrelink to appoint nominees, which covers many different kinds of client needs, not just aged care. The Centrelink and Department of Health and Ageing systems are separate. If you want your nominee to deal with both organisations, you must nominate them with each organisation.You can obtain further information on any of these options by telephoning the Aged Care Information Line on 1800 500 853.
Related topic: Legal issues for people with dementia