As part of your Estate Planning, we recommend that you have an Enduring Power of Attorney (EPOA) and Health Directive to complement your Will.

An EPOA is a legal agreement enabling the appointment of a trusted person or people to make significant decisions regarding a person’s financial or property affairs on their behalf. This is a decision and agreement executed by choice by a person over the age of eighteen years who has full legal capacity. Here, ‘full legal capacity’ means that the person has the competency to understand fully the nature and effect of this decision, once made, and the extent of their estate.

An EPOA is normally enacted while a person still has capacity but may be physically incapable to attend to their financial affairs. The benefit of a person enacting a EPOA is that it will continue to operate even where the person loses full legal capacity due to mental illness, acquired brain injury, cognitive impairment or dementia.

Personal, health and lifestyle decisions cannot be made pursuant to a EPOA and the decision-making rights conferred to an EPOA only relate to financial and property matters.

For cancellation or revocation of an EPOA, the person must have full legal capacity to issue the revocation in writing to the Office of the Public Guardian. Where the person no longer has capacity, an application must be made to the State Administrative Tribunal to decide on the matter.

Advanced Health Directives (AHD) are often called a living will as it is a formal means that provides instructions relating to a person’s future health care effective only where a person’s cognitive health deteriorates resulting in a loss of capacity for decision-making.

Included in an AHD is a person’s desires or instructions for:

• • The medical treatment to be provided if a person can no longer make decisions for their own care;
    • There is a wide scope to provide instructions here including a general instruction to receive all potential treatments available or a specific instruction to decline particular treatments
  • The appointment of an attorney to deal with a person’s health and personal affairs;
  • Information supplied to a person’s health professionals that could affect their care including allergies, pre-existing health conditions, and spiritual, religious or cultural beliefs;
  • Receiving specific life-sustaining measures for example, tube feeding or resuscitation; and
  • The quality of life that is acceptable, for example, in regards to when life-sustaining measures be withheld or withdrawn in the event the person is experiencing:
    • An incurable terminal illness
    • Severe brain damage that prevents communication
    • An irrecoverable illness or injury.

    An AHD can be made freely and voluntarily by anyone who has full legal capacity and is over the age of eighteen (18) years. Completing an AHD is of a particularly timely and urgent nature when a person is close to being admitted to hospital, is likely to have a medical condition affect their ability to make decisions and has a chronic medical condition causing serious complications. However, completing an AHD can be done at almost any time and is a prudent step to ensuring your bodily autonomy is not compromised in the event of incapacity.

    An Enduring Power of Attorney and a Health Directive play crucial roles in your Estate Planning and should compliment your Will and other Estate Planning strategies. Contact us today for an initial consultation about how you could give yourself protection in times when you cannot make decisions for yourself.

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