This session was part of the Advocacy Sector Conversation forum held at the Queen Victoria Women’s Centre on 22 October 2015. Other sessions at this forum were:
- Reporting allegations of abuse
- NDIS Information, Linkages and Capacity-building (ILC) Framework update
- NDIS roll out in Victoria
Overview
On 1 September 2015, the new Powers of Attorney Act came into effect. . It includes a new supportive attorney appointment provision. Helen Rushford, Coordinator Advice and Education Service, at the Office of the Public Advocate talked about resources developed by OPA to assist people with disability and disability advocates to understand and use the new law.
Resources
- Download: OPA presentation 22 October 2015
Listen to podcast
Transcript
ROBYN GAILE:
Thank you everybody, we are now ready to proceed with our afternoon session.
Helen Rushford from the Office of the Public Advocate, Helen is the coordinator of the advice and education service within OPA. She is going to take us through the new Powers of Attorney Act and tell us a little about some of the resources OPA has developed so people with disability and disability advocates working with people with disability can make best use of the act.
Even though I pay attention to every speaker with all of my energy Helen, I’m particularly going to pay attention to this presentation because just to declare a personal interest, a friend of mine who has a mental health condition, recently told me he identified me on various bits of paperwork as his next of kin and immediate contact person, and I thought that’s fair enough. But when I further discussed the matter with him what he really meant was he wanted to make me his Medical Power of Attorney – I thought whoops. It’s one thing to read about these things and provide resources for the sector about Powers of Attorney; it’s another thing to be one. So I’m going to be listening with both ears wide open today Helen.
Join me in welcoming Helen Rushford.
(applause)
HELEN RUSHFORD:
Thanks Robyn, it’s lovely to be here. I have just done a three-hour presentation on Powers of Attorney this morning. I came to here to do this one. I feel certainly for the last 6 months like I live, eat and breathe Powers of Attorney and dream. I do spend a lot of my time – in fact I’m travelling to Mexico at the end of the year and I’ve been doing Spanish lessons, and just before the new Powers came in, I think I had this after one Spanish class, spent this whole night trying to translate the appointment forms into Spanish when I can barely say hello or thank you. It was a complete nightmare. Anyway, I’m a little more informed now so hopefully I will bring you along with me.
Before I start, I would like to acknowledge the Wurundjeri people as the traditional custodians of this land. I would like to pay my respects to elders, past, present, and extend that respect to any Aboriginal people here today.
I’ve got a lot of information to cover. I’ve made the PowerPoint available – Robyn has it electronically. I am happy for that to go out to people. I understand I have an hour. I will be hard pressed to get through all the slides in an hour. I’m guessing people are probably more interested in knowing about the supportive attorney appointments than the enduring powers – am I right? Okay the supportive attorney information comes earlier in the presentation so we’ll spend as much time as we need on that. I’m happy to answer as many questions as I can. What’s left over I will cover what I can with enduring powers. I can come back to do that again but I think it’s probably the supportive attorney appointments that’s interesting for you guys and certainly interesting for us as an office being such brand new legislation.
Essentially starting with a definition of what is a Power of Attorney. A Power of Attorney is a legal document that an adult with decision-making capacity completes. That person is known with the new terminology under the Powers of Attorney Act as the Principal. The principal completes the Power of Attorney document appointing another adult known as the Attorney with authority to make decisions on their behalf or now under our new legislation, to support them to make their own decisions. So we have both options available under the Power of Attorney Act. Power of Attorney operates while the principal is alive and either wants or needs somebody to make decisions on their behalf or to support them to make decisions. Once the principal dies the authority of that Power of Attorney ceases. It operates only while the principal is alive. It’s important to note that every State and Territory in Australia has its own laws for Powers of Attorney. It’s not transferrable. There is some recognition between the States but it’s certainly not uniform.
This slide gives you a snapshot. We’ve got some transition slides we’re covering for this year. The new legislation came in on the 1st September. At the moment people have a sense of I know what was in place so what’s in place now, so we’re providing that comparison at the moment. Before the 1st of September the laws we had in place around Powers of Attorney – we had the Instruments Act of 1958 and that gave us the provisions for a general Power of Attorney and an Enduring Power of Attorney Financial. We also had the Guardianship and Administration Act that provided us with an Enduring Power of Guardianship. The Medical Treatment Act is the law that covers the Enduring Power of Attorney for medical treatment. You will see from that slide from the 1st September we have new laws in place but there has been no change to the Medical Power of Attorney. That was not included in the review of the Power of Attorney. This review commenced about 7 years ago, it was under the Brumby Government. So law reform is a very long, slow process but in their wisdom when they started the review the Government decided not to include the Medical Enduring Power of Attorney as part of that review.
So there has been no change whatsoever to that. You can see what we have in place now is the Powers of Attorney Act 2014. What that gives us is a general Non-enduring Power of Attorney, Supportive Attorney appointments for personal and or financial matters and one Enduring Power of Attorney for personal and or discussion matters. All of those are now covered in the one legislation and you will see the Medical Enduring Power of Attorney remains as it is no change to that and it sits under the Medical Treatment Act of 1988.
The current Government is actually conducting a review of end of life decisions and laws around that. We are hopeful that we might see some law reform in that area as well in the next few years.
Now the legislation gives us – I guess it’s fair to say with this new Power of Attorney Act, there has been an attempt I guess to give it more of a human rights framework. It certainly gives us some good and useful guiding principles and statements. One of those is around decision-making capacity. The legislation makes it quite clear that all people, every person is presumed to have decision-making capacity unless there is evidence to the contrary. It’s a bit like the presumption of innocence. We’re all assumed innocent until we’re proven guilty of a crime. In the same way, all adults are presumed to have the capacity to make their own decisions unless there is some evidence that says that somebody doesn’t have that capacity. That’s the starting point and that’s clearly the framework for this legislation.
It’s also important to remember that people’s capacity to make decisions or their lack of decision making capacity I should say, may be temporary, it doesn’t have to be a permanent situation. That can happen to anybody from an accident, an illness. I have spoken to many people in my 10 years on the advice service where a family member has been struck down by some seemingly benign illness that has then progressed and resulted them being unconscious in hospital or in an induced coma from an accident. So in those situations if somebody is not able to indicate their wishes then clearly any legal frameworks that we have that deal with what happens when somebody can’t make decisions applies equally to somebody in that temporary situation as it does to somebody who has a permanent disability or permanent incapacity.
Again, the legislation talks a lot about the importance of providing people with practical support to be able to make their own decisions. It is very much about not only in relation to supportive attorney appointments, but even with enduring appointments where somebody is there to make decisions on behalf of another person who can’t, there still is an expectation that the principal, the person who has appointed them, is supported to make their own decisions as much as possible, and is involved in any decisions that are being made as those circumstances allow. Again important for people who are appointed in those roles to understand that’s how this legislation works.
It’s also important that assumptions about a persons and I’m sure this is something I don’t have to tell any of you, assumptions about a person’s capacity to make decisions should not be based on appearance or on the decision that a person is making. We’re all entitled to make whatever decisions we want, however bad, foolish, unwise other people consider them to be and that’s a right that we all have. This legislation expresses that. It says that it’s not about making a bad decision. It’s about that somebody can only make decisions on your behalf if you are unable to make those decisions for yourself. They’re important guiding principles I guess.
The legislation also talks about what do you need to consider when you’re looking at somebody’s capacity to make decisions. It highlights a number of key points and that is for somebody to be able to have decision making capacity, they need to understand the information that’s relevant to the decision to making that decision and to understand the information relevant to the effect of that decision. So what do I need to know to make this decision and what do I need to know about what will happen, if I make that decision. A person needs also to be able to retain that information to the extent necessary to make the decision. They need to be able to use or weigh up that information, a process of evaluation. What happens if I do this, this is the likely outcome or if I do this this is the likely outcome. So for somebody to demonstrate they have capacity to make decisions they need to be able to use and weigh up that information. Lastly, they need to be able to communicate their decision in some way including by speech, gestures or other means.
So it’s only really when somebody does not have any means of communicating. Again we’re talking about somebody who is unconscious or in a coma, who has no means of communicating their wishes at all that you would consider that would be one way of saying they do not have decision making capacity.
Please ask questions – somebody have the microphone. I’m happy for people to ask questions as we go along if there is anything that’s not making sense or you want clarification, want to make a comment on that.
GEORGE, YOUTH DISABILITY ADVOCACY SERVICE:
Helen, its George from the Youth Disability Advocacy Service. You mentioned personal and financial and then there’s medical, so there is those three. Personal can you maybe talk about what you mean by personal?
HELEN RUSHFORD:
So basically, what the legislation says personal is any matters that relates to the principals personal or lifestyle affairs. It provides some examples such as making decisions about health care, making decisions about where somebody would live, their day-to-day activities, who they have contact with. So they’re some examples but essentially anything that would be considered a personal decision could be made by an Enduring Power of Attorney for personal matters.
GEORGE:
So you said health care.
HELEN RUSHFORD:
As I said in the fact that they chose not to include the Medical Enduring Power of Attorney in the review, we still have some overlap between the two. If you’re happy to hold that question, I will explain how an Enduring Attorney for personal matters what sort of authority they have as opposed to somebody who is a medical agent under a Medical Enduring Power of Attorney.
FIONA, GRAMPIANS DISABILITY ADVOCACY:
Fiona Tipping from Grampians Disability Advocacy. Just on practical terms only because it’s a case that’s come up with me a couple of times – previously I have had a couple of cases where people were denied the right to legal representation because their legal guardian said they didn’t want them to have it or the right to advocacy. That was taken up by the Office of the Public Advocate. I am just wondering that was supposed to be reviewed to change that, I’m wondering if it’s happened?
HELEN RUSHFORD:
So for both supportive attorney appointments and enduring appointments, they can be made for both personal and or financial matters. The definition of financial matters is any matter relating to the principals finances or property including any legal matters that relate to that. The same with personal, any matters relating to the principal’s personal or lifestyle matters including any legal matters that may relate to the person’s personal. So that for instance could be around an intervention order, that’s a legal issue that details with a personal matter. A supportive attorney could be involved in supporting the principal around those decisions. An enduring attorney for personal matters could make those decisions on behalf of the principal. I don’t think any substitute decision maker has the right to deny another person access to legal support, information.
QUESTION:
Can I just ask, is this doing away completely with guardianship there is no guardianship?
HELEN RUSHFORD:
No there is still guardianship. As I said at the start, a Power of Attorney is a legal document that an adult with capacity makes. So you have to be able to do these things. If you can do these things, you can potentially make a Power of Attorney yourself to put in place somebody that you want to be able to make decisions for you or support you to make decisions when either you can’t or when you want them to do that. Guardianship orders are made when a person has a disability and that disability means that they’re unable to make reasonable decisions for themselves. There has to be some evidence about the fact that the person lacks decision-making capacity. Those applications go to VCAT and VCAT look for the supporting evidence to be clear that the person has a disability under the Guardianship and Administration Act. That can be an intellectual disability, an acquired brain injury, a physical disability, mental illness or dementia. That’s the definition of disability under the Guardianship and Administration Act. So for a Guardianship or an Administration order to be made there needs to be evidence that somebody has one of those disabilities and that disability affects the person’s ability to be able to make reasonable decisions for themselves. Because of their disability, they can’t do these things and there is a current decision that needs to be made that can’t be made any other way.
QUESTION:
It was just sounding like the Guardianship is gone.
HELEN RUSHFORD:
No guardianship is still there very much. At the office, we spend, a lot of time talking about Powers of Attorney because it’s almost like a demand management strategy for us. If people while they’re competent make these appointments and make them and spend time thinking about planning, choosing the right people to appoint, then if the situation arises that they can’t make decisions for themselves, they’ve already named somebody who can make those decisions for them and then those matters don’t have to go to VCAT. That’s the idea. If you get the right person in place, if you spend time thinking about what you want, whether you want somebody, who you want to appoint, what sort of decisions you want them to make and that’s clearly spelt out in the appointment form, in theory that should reduce the need for applications to VCAT. In theory.
I’m not going to spend any time talking about a General Non Enduring Power of Attorney because it’s not enduring as the name suggests. It is a document that allows the principal to appoint somebody to make financial and some legal decisions on their behalf. It tends to be the sort of document that people make if they’re going overseas and they want to have somebody here who can sort out any banking issues or anything like that. It only operates while the principal has capacity to give instruction and direction to the person that they’ve appointed. So it’s not about future planning, it’s really about people use it a lot in business when they need somebody else to undertake financial and some legal activities on their behalf.
Supportive Attorney appointments – now I will do this as a summary of what current Power of Attorney are available now and then I will talk in more detail about the Supportive Attorney appointments and you can ask me as many questions as you like then. It is also not enduring. If you think about it logically, the purpose of a Supportive Attorney appointment is to support the principal to be able to make their own decisions. So it stands to reason if the principal can’t make decisions the Supportive Attorney can’t act because the supportive attorney isn’t making decisions for the principal, they’re supporting the principal to make their own decisions and there are various ways they can do that. It can only operate while the p[principal is able to make those decisions for which they want their supportive attorney to support.
There is a variety, I’m not going to go into too much of the detail of how many people you can appoint and in what ways. I have bought some booklets with me, I will talk at the end about resources available, and there are some here. If I tell you, you won’t remember so better off if you read it at a later point.
The Enduring Power of Attorney – as I said one power of attorney that allows for the appointment of an attorney for personal or financial matters or both personal and financial matters in the one form. This does endure. For all of Powers of Attorney the person has to have capacity to make them. But an Enduring Power of Attorney, the authority of that person who is appointed continues or endures when the principal loses capacity to make their own decisions and then the enduring attorney steps into their shoes and makes decisions on their behalf.
Then the Medical Enduring Power of Attorney, a separate document that allows for the appointment of somebody to make medical treatment decisions only. So that’s only decisions that are made by a medical practitioner or a Doctor. Again, I’ve got the detail of the slide but it’s about medical treatment, not physio or nursing services, all those sorts of things. It’s about treatment that’s been offered by a medial practitioner or a dentist.
Let’s talk about Supportive Attorney appointments. This is brand new legislation not only for Victoria but it’s the first of its kind in Australia. It’s really exciting for us to be involved in this. There is a lot that we don’t know. I can talk to you about what the law says and what it’s designed to do but because it is new and it’s not operating anywhere else in Australia, there are lots of things that are a bit unknown about how it’s actually going to roll out. What we do know is that the intention of this legislation was to allow people with disability the opportunity to exercise their rights to make their own decisions with support. When you read the second reading speech of the then Attorney General, Robert Clark when the legislation was introduced in Parliament, he makes it quite clear that that was the intent behind this legislation. So for people who because of a disability might not have been able to make an Enduring Power of Attorney or who might not have wanted to make that but in fact we’re looking for somebody who could support them, formally support them to make decisions that’s the intention of this legislation. However, it is open to anybody, any adult over the age of 18 who might see this as a useful tool can make that. It’s not just limited to people with disabilities, it’s anybody who considers there is a reason for them making a supportive attorney appointment can make that.
As I said, it allows the principal to appoint somebody who can support their decisions. So quite a different idea from an Enduring Power of Attorney, which is about substitute decision making. While we know a lot of people have informal arrangements, in place already, what this provides is a formal legal arrangement and that can be useful for having the person in the support role recognised. They now have, there is no legal framework that says yes this person has the authority to do this.
This is what the legislation tells us that somebody needs to be able to understand to make a supportive attorney appointment. That is that the principal understands that the appointment enables them to have somebody to support them, to appoint somebody to support them to make their decisions. That they can choose the person to support them, that’s their choice and that role of that person is to support them to make decisions. That the supported decisions are the principal’s decisions. They’re not the decisions of the supportive attorney; they’re the principal’s decisions. Anybody making this needs to understand when the appointment commences and they have some choice in that, they can decide when the appointment commences and they can revoke the appointment at any time while they still have the capacity to do so. So if an individual, an adult can understand these matters, and if you remember back to that overarching, that broad decision making capacity slide where I talked about somebody needs to be able to communicate their decisions in some way, needs to be able to retain that information, needs to be able to evaluate. So they need to be able to do that and then specifically in relation to the supportive attorney appointment they need to be able to understand these matters. Does that make sense to people – yes/no. Okay great.
Now there is a range of options with these appointments about people can choose more than one person, two appointers as their Supportive Attorney. They can choose whether they appoint somebody for financial matters or personal matters or both. They can choose when the appointment starts and there are some legal requirements around the form. It has to be witnessed. There are formal witnessing requirements. The person being appointed as the Supportive Attorney has to formally accept their appointment. All that information you will find in the booklet I have bought along here.
It’s interesting, as I said the intent of the legislation was really around people with existing disabilities being able to appoint people to support them. But in the education sessions, as I said it’s new information, and we don’t really know who is going to take up these appointments. It will be interesting for us to see how that rolls out over the next 12 months. I know I have done quite a lot of sessions in the last month or so with just general community audiences and a lot of those audiences our target group tends to be older people. We don’t target them but it’s older people who are interested in these sorts of matters. What I found is there are quite a lot of those people who are interested in this idea. Particularly when we know what’s bordering on a dementia epidemic in Australia or around the world and certainly what we know at the Office of the Public Advocate is those clients for whom we are appointed as guardian the vast majority are people who have acquired a disability during their lifetime and out of those the biggest group is people with dementia. Dementia as you know is a progressive illness. What a number of people are interested in is perhaps if they’re diagnosed with a progressive illness such as dementia or motor neuron, multiple sclerosis, the early stages of that diagnosis that they – and particularly if they’re really wanting to retain autonomy around their decision making, that they can envisage that they would make a Supportive Attorney appointment to have somebody to support them to make decisions while they still have capacity but might need support in a variety of ways. Then they may also make knowing that that’s a degenerative disease and that they are likely to get to a point where they’re going to be unable to make decisions for themselves that they will also make Enduring Powers of Attorney so they have that continuum. So they’ve got somebody – and that is something that anybody could consider, that they’ve got somebody to support them to make decisions while they can make those decisions, that they’ve also named who they would want to be their substitute decision maker should they get to the point where they’re unable to make decisions for themselves. As I say it will be really interesting who does take up these appointments, how well they work and how they’re used. As I said, I can talk to you about what the law allows but in fact, how they’re going to be used we don’t really know.
So with the Supportive Attorney appointment having decided, the principal having decided who they want to appoint, how many people they want to appoint and whether they want support around personal matters or financial matters they can then decide what sort of power to give to their Supportive Attorney. The law gives three options. The principal can give their Supportive Attorney one or any combination of these three. The three powers are – information power that allows the Supportive Attorney to access or disclose information on behalf of the principal or assist the principal to access or disclose information. Communication power, which gives the Supportive Attorney the authority to communicate decisions on behalf of the principal or assist the principal to communicate their decisions. And the third power is the power to give effect to decisions. We tend to refer to it as the power to make it happen. That can be anything, it’s very broad, it’s not defined but the legislation says it’s anything else that is required to give effect to a decision, to make a decision happen. So that might be attending a meeting with the principal or on behalf of the principal. It might be for somebody who is physically unable to sign, it might involve signing documentation. As I said, it’s not defined and it’s sort of really open to see how people use that last power.
When a principal is making a decision, they need to decide what sort of power they want their Supportive Attorney to have.
GEORGE, YOUTH DISABILITY SERVICE:
I noticed you moved to the next slide but at the bottom you have something in bold.
HELEN RUSHFORD:
Yes, I said Supportive Attorneys cannot be involved in significant financial transactions.
GEORGE:
Can you explain?
HELEN RUSHFORD:
Which are – and this is somewhat of an area of concern and where perhaps it’s a bit loose there might need to be some law reform. I think we are probably hoping there might be some law reform. I will talk to you about what we can already see as the potential pitfalls of this. So a Supportive Attorney, the legislation says, cannot be involved in significant financial transactions. That’s defined as or includes, it’s not limited to this but these are the key areas – buying or selling a house or other property, entering into a secured loan, most investments. One of the points, one of the issues about the investments is that it’s investments over $10,000. That’s a big amount. That means that they could be involved in some investments that were worth less than $10,000. Investments also includes deposits at a registered financial deposit taking institution, in other words a bank. In theory, it means a Supportive Attorney could be involved in financial matters with bank accounts as long as it was less than $10,000 and buying or selling significant personal property.
They’re most of the definitions. One of the things we’re already asked the Parliamentary Council for advice on, that $10,000 limit is if you had a support – is it cumulative? So if you had a Supportive Attorney who went to the bank today and dealt with a transaction that involved $4,000, withdrew that money for instance and then they went back to the bank on Monday and then dealt with money of $6,000 and then they went back a week later and dealt with another transaction that’s worth $8,000 – it’s all under the $10,000, is the $10,000 cumulative and over what period of time and who makes that decision. What we know about our lawmakers is they’re not thinking necessarily in practical terms. We’ve asked for advice about that, we haven’t got it yet. That was a number of weeks ago we raised that issue and we haven’t got any advice back about that.
So buying or selling significant personal property – there is no dollar amount given to that, does the $10,000 apply to that? So there are some issues around this and we will just have to see how it plays out. What we also know is VCAT has an oversight role in relation to Supportive Attorney appointments in the same way they do if people have concerns about the way an Enduring Power of Attorney is operating. But given that VCAT usually deal with matters when a principal doesn’t have capacity to make decisions for themselves, and a Supportive Attorney appointment can only operate while a principal does have capacity, we’re not quite sure about if somebody had a query is this a significant financial transaction or not and they took it to VCAT whether VCAT would deal with it. There is lots of those things, we have to just wait and see how that plays out I think. As I keep saying, it’s new to everybody. It will be a bit sort of trial and error I guess.
There are some restrictions on who can be appointed as a Supportive Attorney and also restrictions on who can witness Supportive Attorney appointments. So in terms of who can be appointed as a Supportive Attorney, a Supportive Attorney cannot be somebody who is bankrupt, is also cannot be a care provider, an accommodation provider or a health provider for the principal.
GEORGE, YOUTH DISABILITY SERVICE:
Can it be an advocate?
HELEN RUSHFORD:
Probably unless if you worked in a health service you would probably be considered a health provider because of who your employer was, so you couldn’t be. We’ve had the discussion, I think it could be an advocate and in fact, we’ve had discussions at OPA about in those instances not where we’re guardian for people but where we take up individual advocacy matters that there might be some value in those situations of having a formal Supportive Attorney appointment. So a care provider is somebody providing like home care worker or personal care worker, those sorts of things. I could see yes that an advocate could.
A Supportive Attorney appointed for financial matters, cannot be appointed if they have been convicted or found guilty of a dishonesty offence unless they disclose that in the appointment form. So when you look at the appointment form, which is in our booklets, you will see that there is a tick box that says – I have disclosed to the principal that I have been convicted. They don’t have to say what the offence is just that they’ve been convicted of a dishonesty or fraud offence and then they can be appointed as a Supportive Attorney. However if somebody appointed someone as a Supportive Attorney and then they were convicted of a dishonesty or fraud offence then they would no longer be eligible and that appointment would end. But then as somebody pointed out this morning, you could redo your Supportive Attorney appointment and appoint them again as long as they tick the box now that they have been found guilty.
There are duties and obligations laid out in the Act of a Supportive Attorney and that is they must act honestly, diligently, and in good faith, exercise reasonable skill and care. Not use the position for profit, avoid acting where there is or may be a conflict of interest and discuss anything about a supported decision with the principal in a way the principal will understand and that will help the principal make the decision. So when somebody signs their statement of acceptance saying they’re happy to take on the appointment as a Supportive Attorney, they sign that they are willing to carry out duties and obligations as laid out in the legislation. This is what that refers to.
Any questions?
GEORGE, YOUTH DISABILITY SERVICE:
I’m interested in how this relates to laws around next of kin because I will just explain the situation. We have a client who is 22, doesn’t have a guardian appointed but she is often unwell and is in and out of hospital. It seems, I found it odd that there was no formal Medical Power of Attorney and in fact the Doctors just ask the parents what to do and no one really makes an effort to find out what the young person themselves wants.
HELEN RUSHFORD:
So next of kin is not a legal term but what we do have under the Guardianship Administration Act is personal responsible provisions and they only relate to health care. There is a hierarchy.
One of the booklets I have put on the table out the back, probably the front actually, is our Take Control book that deals with Enduring Powers of Attorney and we’ve also got a page in there about medical decision-making. I haven’t bought a lot of those because I didn’t think there would be as much interest. All the information is on our website and the books can be ordered as well in hard copy and available for download.
In relation to health care, if any Doctor whose providing medical treatment must have the consent of the patient. If a patient is not able to consent – that’s Step 1, can the patient consent to this decision. So there might be in the client you’re talking about, there might be sometimes depending on what her health issues are there might be times that she is able to consent to a decision and other times when she is not. It will also just depend on what the decision is. There will be people who would have the capacity to consent to a more simple decision about will I have a blood test. The Doctor is suggesting you have a blood test, you haven been feeling well, been really tired/run down, let’s have a blood test to see what’s going on. The patient says yes that’s fine. Then the blood test comes back and shows the patient has leukaemia and there needs to be complex decisions made about treatment. It may be that patient might not be able to make those decisions about treatment. So if a Doctor determines a patient is not able to provide informed consent they must then look for who is the person responsible and that’s the term that’s used under the Guardianship and Administration Act. That’s a hierarchy.
The first few positions on that list are people who are appointed in that role. The very top of the list is somebody who is appointed as a medical agent under an Enduring Power of Attorney for medical treatment. Second is the person appointed by VCAT to make medical decisions. Third is a guardian appointed by VCAT. Fourth is a person appointed as an Enduring Power of Attorney for personal matters. Then it’s the person appointed by the person in writing. Then we get to people who are in that position by virtue of their relationship with the patient – so spouse, domestic partner, primary carer and then we go to nearest relative and there is a hierarchy within that as well. It only goes as far as aunt and uncle, niece and nephew.
So in my case I’ve made my Enduring Power of Attorney for medical treatment and I’ve named by sister who is a nurse because I figured she would be better able to stand up to the Doctors. She is number one for me. My partner he doesn’t get a Guernsey because he is in at number five. It doesn’t matter what he thinks it’s my choice. But that was my decision. That’s a good reason for somebody making Enduring Powers of Attorney particularly for medical treatment. If you want to have somebody who is not on that list or want to elevate somebody from the bottom of that list, in my family for my parents I was the youngest of eight, I was never going to get a look in. For son and daughter siblings it’s oldest first. If my parents had of wanted me to be their medical decision maker they would’ve needed to appoint me as their medical agent to get me higher up the list. So it’s really good reasons for people making Enduring Powers of Attorney.
However Supportive Attorney appointments don’t apply here because the person responsible provisions are only when a patient cannot make that decision themselves. A Supportive Attorney can only support somebody to make decisions. So using your client as an example, let’s say for instance she does have the capacity to make a Supportive Attorney appointment and knowing that she has a lot of health issues, she actually wants somebody to be able to support her, it might be about communicating decisions with a Doctor, it might be helping her understand information, it might simply be having somebody to attend appointments with her and it might be that she’s got a really close friend or it might be a sibling rather than her parents that she would want to have involved in that supportive role. So she could appoint somebody as her Supportive Attorney to be able to support her and in that way perhaps encourage the clinicians, the Doctors to be dealing with her about her own issues, her own health issues rather than going to her parents. But then if she was unwell, so let’s say she became really unwell and was in hospital and the Doctor felt that she couldn’t give informed consent to that decision, well then there would be no role for her Supportive Attorney at that point because she can’t make that decision and then they would need to look at who was first on that list of person responsible who could make a substitute medical decision for her. Does that help clarify that?
GEORGE, YOUTH DISABILITY SERVICE:
Yeah that certainly does. Just a comment to add to that is that I have found Doctors don’t often ask the person with the disability, they go straight to the parent.
HELEN RUSHFORD:
Couldn’t agree more and the Guardianship and Administration Act in relation to person responsible clearly states a person responsible in making a decision must take into effect the wishes of a patient. Even if you have somebody who is in that position, and I agree with you, often they say it’s easier, let’s just get the parents rather than spend time trying to communicate with somebody with a disability or whatever it might be. But even with the parents, whoever the person responsible is, should still be first thing what does the patient want, what are their views, wishes, preferences, values, beliefs all those things. We know in practice that doesn’t always happen.
ROBYN GAILE:
Helen can I just ask if you’ve prepared yourself and put an Enduring Power of Attorney in place but you’re using a Support Attorney and something happens that you didn’t predict and the hierarchy is turned to – will you support decision maker be involved at all or will they go to the Power of Attorney?
HELEN RUSHFORD:
If the principal can’t make a decision then there is no role for the Supportive Attorney, for some people that might be temporary. But then if the Supportive Attorney, so one example that’s come up is say somebody with mental health issues who may say for example suffer depression and anxiety. They might decide that a Supportive Attorney would be really useful because they know when they have to deal with service providers, phone companies whatever it might be, that produces significant anxiety for them, they get really stressed, struggle to do it. So they might appoint a Supportive Attorney, talk to the Supportive Attorney about the types of decisions they want them to support. But then if they’ve experienced a significant depression for instance and were perhaps admitted as a compulsory patient under the Mental Health Act and were deemed then not able to make decisions, while that was occurring there would be no role for the Supportive Attorney. It would only be if the principal lost capacity permanently that that appointment would stop all together. But at any point in which the principal can’t make a decision the Supportive Attorney can’t act because it relies on the principal making that decision. Is that clear?
ROBYN GAILE
That helps thanks.
HELEN RUSHFORD
I’m going to whip through the Enduring Attorney because I’m just about out of time and I’ve covered a lot of this anyway. One document that allows for the appointment of somebody for financial matters either or personal matters or both, as we talked about financial matters relates to anything to do with the principal’s finances or property, including things like paying expenses, making investments, real estate transactions etc.
Personal matters are any matter relating to the principal’s personal or lifestyle affairs including health care matters. Just to clarify the difference between an attorney appointed for personal matters and an attorney appointed as a medical agent under a Medical Enduring Power of Attorney, an attorney appointed for personal matters, can consent to treatment. The important thing is if somebody wants to have somebody in place who has the legal authority to refuse treatment on their behalf, they must also make an Enduring Power of Attorney for medical treatment. It is only a Medical Power of Attorney that can refuse treatment. If somebody has both in place, so we talked about that person responsible hierarchy, so in my case I’ve done it under the old laws, but I’ve got all three Powers of Attorney in place. I’ve got my medical agent under a Medical Power of Attorney. I’ve got an enduring guardian under an Enduring Power of Guardianship so replace that with an Enduring Attorney for personal matters and I’ve got a financial. So if I need somebody to make a health care decision for me, it’s my medical agent, they take precedent; they’re number one on the list. If I didn’t have a medical agent, it would be my Enduring Guardian or my Enduring Attorney for personal matters. So it depends what you have in place.
Our message for people is if you want to appoint somebody to make all sorts of personal decisions for you such as where you live, what sort of services you get, who you have contact with and your health care, appoint an Enduring Power of Attorney for personal matters. But if it’s also important to you to have somebody who can refuse treatment you must make a Medical Enduring Power of Attorney as well. But if you say no, I don’t want – it’s a bridge too far for me to think that somebody would have the power to refuse treatment on my behalf then you don’t need the medical, you can just make the Enduring Power of Attorney for personal treatment. They can consent to treatment but they can’t refuse it for you. Again, it’s very much an individual mater. Our laws and especially these laws give people lots of choices now about who to appoint, how many to appoint, in what way you appoint them, how they can act, when they can act and so people need to really think about this before they get to the forms. If you get to the forms and you haven’t thought all of that through you will be completely bamboozled.
Now we talked before about a Supportive Attorney, for somebody to make a Supportive Attorney appointment they had to understand certain things – the decisions were theirs, the person supported them to make decisions. It’s a different test for an Enduring Power of Attorney. It’s not necessarily harder but it’s different. So for somebody to be able to make an Power of Attorney they have to understand these things. Some of the key things in that so they need to understand they can set conditions and limits limitations for their attorney and give instructions. They need to understand when the power commences and they have a choice in that, can commence immediately. It can commence only when they lose capacity. That the attorney has the same power as the principal for the matters in which they’ve been appointed. So if the principal can’t make decisions the attorney can. So that’s an important distinction. The principal needs to understand that the Power of Attorney continues if they lose capacity, they can revoke the power while they have the capacity to do so, but if they lose capacity they will be unable to oversee the use of the power. That’s why it’s so important to get the right person and somebody you can trust to do that.
As I said there are a number of different ways you can set up a Power of Attorney. You can appoint more than one Power of Attorney. If appointing more than one you can appoint them jointly, severally. Jointly means they must act together, severally they act individually. Jointly and severally they can do both. By majority means if you appoint more than two – so three or four, there has to be a majority who agree before a decision can be made. Let me tell you the general community love that, they go great now I can appoint five of my children, three of them have to agree before a decision, and I just think recipe for disaster.
(laughter)
There are witnessing requirements. The Attorney must formally accept the appointment and it has to be witnessed. All that information is on the website or in Take Control.
Again, the same sorts of limitations, exclusions for who can be an Attorney. Under an Enduring Power of Attorney, they cannot be bankrupt, care provider, accommodation provider, health provider and the same dishonesty disclosure applies as well. The legislation gives us some nice frameworks or guiding principal again for the way the attorney should be acting if making decisions when the principal doesn’t have capacity. That is they must do so in a way that is as least restrictive of the principal’s ability to decide and act as is possible in the circumstances and ensure the principal is given practical and appropriate support to enable them to participate in decisions that affect them. It also talks about taking reasonable steps to encourage the principal to participate, giving as practicable and appropriate effect to the principal’s wishes. And acting in away that promotes the personal able and social well-being of the principal including by recognising the inherent dignity of the principal and, considering the principal’s existing supportive relationships, religion, values and cultural and linguistic needs and respecting the confidentiality of the principal. So when an Enduring Attorney signs their statement of acceptance this is what they’re signing up for saying yes I’m going to do all these things. Particularly when we look now at the Medical Enduring Power of Attorney where there has been no change to that, that was law drawn up in 1988, it seems very lacking. It doesn’t provide us with any of this framework of guidance. It’s good that this has been included in the laws.
I’m over time, I would probably rather take any questions people have just to finish off. There is information in the slides about the Medical Power of Attorney as well. Any last questions before I finish – No?
I will just remind people if you’re confused by all of this we have a very skilled and knowledgeable, currently very tired – we’ve been dealing with about an 85% increase in our calls since the new laws came in and no comparable increase in staff. We’re all a little worn out. We have workers on our advice service who are happy to talk with you about any of these issues and give you advice. We’ve got a range of resources that are available. We’ve got a booklet on making supportive attorneys that’s called Side by Side. Side by Side is a brand new guide that deals with supportive appointments. It also has the appointment form in it. It also has an easy English guide within that document as well that’s on a perforated page that can be torn out. Then we have Take Control, which is our guide for Enduring Powers of Attorney. Again, it has the appointment form and all the information about Enduring Powers of Attorney. We’ve also got brochures – I’ve bought with me today Take Control, the Side by Side and the Powers of Attorney brochure and they’re all available to be ordered in hard copy through Victoria Legal Aid in bulk, small quantities in our office. Actually, the brochures are not downloadable because they don’t print off very well. You can order them in hard copy and all the information is available on the website.
Thank you for your time, I hope that was useful.
(applause)
ROBYN GAILE
Thanks Helen, Helen Rushford who is the Coordinator, Advice and Education Service at OPA. Thanks so much that was really comprehensive. If you rush out now to the registration desk you will be able to get some copies of those documents but as Helen mentioned they are resources available on the OPA website. As per our standard practice after every advocacy sector conversation forum any resources mentioned by any of our speakers we will provide links to those resources in the post forum resource that is emailed out to everybody who has registered for today’s forum. If you’ve come today and haven’t registered make sure you get in touch with Natasha so we have your current email contact details.
Helen thank you so much, that was fabulous. A hell of a lot to digest so it’s great there are so many resources. I’m a little bit scared now. Thank you.
(applause)
- Source:
- DARU