Is caution about representation now a source of mischief?

For many people it seems a wise strategy to create an Enduring Power of Attorney or a Power of Enduring Guardianship and to leave it unaccepted by some or all of their representatives. The thinking is to plan for the future, but not create an active substitute decision maker until necessary.

Having regard to the current uncertainties in the world, it is certainty time to revisit the logic and purpose of those appointments.

Any initial concern someone may have had about their attorneys or guardians competing with their interests, or being competent to undertake their roles, needs to be revisited before activation occurs.

We are now in the third decade of the 21st century. Personal Representation Appointment (PRA) documents (eg Powers of Attorney and Guardianship) may have been created decades earlier. The relevance of the documents to current circumstances needs to be tested.

For this there are many questions. They are questions people who have created PRA documents (“donors”) should consider before undertaking a PRA document review or activation.

    • Does donors have the capacity and ability to make any necessary changes to their documents? Is it safe to assume current legal capacity given the presenting facts of the clients’ situation? Is a capacity trigger present?
    • Do the donors’ representatives have the capacity and ability to undertake the representatives’ role?
    • Do the representatives have a clear understanding of the fiduciary nature of their roles where they are appointed as an attorney?
    • Do the representatives have a clear understanding of the options of their role as supporting decision makers, not just substitute decision makers
    • Is it time to activate that representation?
    • How should that be done? How does the donor wish to assert their will and preference about their care to the personal representative they are appointing?
    • How then should activation be approached? Is a joint meeting between donor and representative warranted before activation proceeds?

Review considerations for assessing appointed attorneys and guardians

Donors need to make sure that their expectations about how their affairs should be managed by their representatives are clearly set out if there is to be any hope of those expectations being able to be enforced in the future.

The consequence of silence on these matters is to allow personal representatives to substitute in many situations their opinion for the intent and expectation of the donor. Various forms of abuse can be the result of a self-interested application of that power.

Acknowledging the donor’s rights

Donors need to be aware of and resolve any concerns they may have about the potential for personal representatives to abuse their power.

The Clinic supports the use of the National Decision Making Principles to guide the operation of attorneys and guardians. These principles in our view require the attorney or guardian to acknowledge that that the donor, notwithstanding their appointment:

    • retains the right to make decisions,
    • retains the right be supported in that decision making, by in turn
    • the representative helping the person to exercise their will and preference, and
    • provide safeguards for exercising the donor’s decision-making rights.

Capacity and capability assessment of the donor 

This approach we believe also requires the personal representatives, carers, supporters, attending professionals and service providers or suppliers to have a clear understanding in dealing with the donor’s capacity and capability:

    • Why they believe they can assume the legal capacity of a person,
    • Whether or not a capacity assessment trigger is present, and
    • Whether a capacity assessment trigger present and if so, what is the trigger and how resolution of the trigger should be approached.

Capacity is not age, diagnosis, situation or decision bound. It is a relative concept which must be fixed in its context for a person and in the course of that process, the capacity and capability of a person can be demonstrated, understood and evidenced.

Your next step – getting help

The Capacity and Capability Clinic at Macquarie University Hospital provides a structured medico-legal consultation co-seated by Dr Jane Lonie, a clinical neuropsychologist and Michael Perkins TEP, independent of other contributing professionals already retained by the client.

The Clinic’s work can efficiently address the matter of a person’s capacity and capability in the course of completing assignments such as a PRA document review or activation.

  • The Clinic is an outpatient focused, privately funded service, support, and educational and training platform that delivers a blended medico-legal, physical or video conference consultation-based service. Zoom, Skype and FreeConferenceCall are currently hosted by the Clinic. Please contact MQ health to discuss the consultation hosting needed for a particular matter.
  • Referrals, appointments and clinician availability and general enquiries: Please email capacity@mqhealth.org.au or phone 9812 3997. Client appointments are conducted at MQ Health, Suite 401, Level 4, 2 Technology Place, Macquarie University unless otherwise arranged.
  • The Clinic’s service through its supporter program provides access to specialist professionals and service providers with expertise relevant to the needs of ageing Australians, their issues and problems. Information about this support may also be provided to Clients of the clinic when appropriate to the assignment.
  • The Clinic is operated by Autonomy First Lawyers Pty Limited with the support of MQ Health. Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Autonomy First Lawyers are members of the scheme. Medical and Allied Health practitioners who operate at the clinic are supplied by MQ Health.

Comments and queries about this post are welcome. To discuss concerns you may have you are welcome to make contact.

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Important Disclaimer: This post is an overview for general guidance only.  It does not replace the need for advice on individual cases.  For specific advice particular circumstances must be taken into account and a Clinic consultation is offered.