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Tuesday, May 17, 2022

‘Enduring power of attorney’: Compass webinar helps start the conversation

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Creating an enduring power of attorney (EPoA): it’s an incredibly intimidating thought for many elders, with the potential need to transfer power over your own affairs a prospect most of us, young or old, push to the back of our minds.

Mindful that many consider the subject to be stress-inducing and avoidable-if-possible, Compass, an initiative from Elder Abuse Action Australia (EAAA), hosted a webinar last Thursday, breaking down the issue and providing advice on how to safely enter into such an arrangement.

The esteemed panel – including Dr John Chesterman, a lawyer, historian and Queensland’s Public Advocate, Karen Williams, a principal solicitor at Aged and Disability Advocacy Australia (ADA) and Dr Patricia Reyes, a consultant geriatrician at St Vincent’s Hospital in Melbourne – provided advice from both a legal and a medical perspective.

Vitally, the panel clarified the fact that no older person should be coerced or be put under the impression that they must establish an enduring power of attorney.

“There is no obligation on people to complete an EPoA,” Chesterman said.

“People are sometimes told in a residential aged care facility that they must complete an enduring power of attorney, but that is not true.”

The technical title and legal conditions for EPoAs vary slightly, state-by-state, with further information about these differences available via this link.

What are the medical conditions that may warrant initiation of an EPoA?

Reyes, as a consultant geriatrician, frequently assesses patients’ cognitive capacity.

She says that a significant impairment indicates that an older person may, but not always, be a prime candidate for establishing an EPoA.

“To determine capacity, I undergo two stages, a diagnostic phase and a functional phase.

“The first question I have to ask is, ‘is there a cognitive or brain disturbance…?’ [if so], ‘is that temporary or permanent?’.”

People are allowed to make silly decisions. I’m not there to judge the decision itself; I’m there to test someone’s capacity to make that decision.

Dr Patricia Reyes, consultant geriatrician at St Vincent’s Hospital, Melbourne

“[Secondly], ‘is this impairment of disturbance affecting that person’s capacity to make that decision?’.”

Stroke and the onset of dementia are two common causes for a lack of capacity, but Reyes notes that a diagnosis of such a condition does not automatically mean that someone should initiate an EPoA.

“Early dementia is a tricky situation: they have a label… but when it’s early, they are still able to understand everything that’s happening around them,” Reyes said.

And carers should be wary of the fact that, sometimes, loss in decision making capacity is only temporary, depending on the condition.

“Severe illnesses, like a heart-attack or a severe infection, may prevent blood flow to the brain… but once that is treated, that period of increased confusion might settle down,” Reyes added.

Williams explained that it is important to factor this in before rushing into an arrangement that provides zero exit clauses if capacity is found to have returned.

“You don’t want your decision-maker to step in and never step out if your capacity improves.”

Conversations are the important part… it can be hard to start the conversation at first, and the instant reaction might be ‘that’s a morbid conversation to bring up’.

Dr John Chesterman, lawyer, historian, Queensland’s Public Advocate

Vitally, Reyes noted that a person should not be deprived agency over their affairs for making a subjectively objectionable opinion.

“People are allowed to make silly decisions,” Reyes said.

“I’m not there to judge the decision itself; I’m there to test someone’s capacity to make that decision.”

However, if an elder’s decision making is reckless or dangerous in nature, that is considered just cause for stepping in.

“If the person is making decisions that put them in harms way, or they are making decisions that are out of character… that may be a trigger to think ‘hmmm, maybe they need an assessment’.”

Don’t be afraid to start the conversation

Chesterman noted that starting to have conversations about the older person in your life’s wishes is essentially to ensuring everyone is on the same page.

“Conversations are the important part… it can be hard to start the conversation at first, and the instant reaction might be ‘that’s a morbid conversation to bring up’.

He added that if there is initial discomfort from family members, gently ask them to indicate a time in the near future that might suit them better to initiate the discussion.

“If the answer is never, that is unfortunate… the point I always make is: it’s never too early, but it can be too late.”

The video below, produced by Seniors Rights Victoria, provides such advice on how to comfortably initiate such conversations with friends and family.

Williams said that in choosing the appropriate person to have an EPoA over an elder’s affairs, consideration must not just be about competence and virtue: it comes down to who can be trusted to best embody the elder’s own values.

“You want someone who’s going to step into your shoes in the most seamless way possible.

“You want someone that’s decisive and would make the decision that you would have made… are they able to be a strong advocate for you, are they the sort of person who could stop a doctor in a busy hospital?”

Williams added that it helps in the long run to have someone who will commit to be open and transparent about their decision making on the elder’s behalf.

in choosing the appropriate person to have an EPoA over an elder’s affairs, consideration must not just be about competence and virtue: it comes down to who can be trusted to best embody the elder’s own values.

Karen Williams, principal solicitor at Aged and Disability Advocacy Australia

“Often not being included is really stressful… so being transparent and accountable can mitigate against a lot of concerns.”

“It could be as simple as a person is now receiving aged care and the attorney may be doing a good job, but the [older] person wants to see the bank statement and the attorney is offended.

“But [the requirement to disclose decisions and activities] can be stipulated in the agreement.”

“It’s about the diligence, being able to be on the job, and sometimes time zones can make that awkward or difficult if there’s decisions that need to be quickly made.”

If more than one person — for example, a group of siblings — is granted EPoA, it is important to stipulate how decisions are arrived upon, to avoid confusion and potential conflict.

“The document might say majority, it might say that decisions can be made separately or jointly,” Williams noted.

More about Compass

Compass, developed by Elder Abuse Action Australia (EAAA), is a national website navigating elder abuse in Australia.

It aims to create a national focus on elder abuse by raising awareness of this growing social issue, and simplify the process of connecting people to services and information tackling elder abuse.

For assistance, call 1800 ELDERHELP (1800 353 374) or visit the Compass website for more information.

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