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Legal information

 

alternate text 48As a carer, you have the responsibility to ensure the best decisions are made for the person you care for.  In some situations you may need to make decisions on their behalf.

This often becomes an issue if the person you care for has limited capacity. When they are not capable of making important life decisions someone will need to make decisions for them.

 

Does the person you care for have the capacity to make important decisions?

If you are unsure of the capacity of the person you are caring for, you should read the NSW Australian Government's Capacity Tool Kit External Link. It provides answers to questions you may have about capacity.

The Capacity Took Kit factsheetExternal Link provides a quick and easy overview of the content in the Tool Kit.

 

Are you legally able to make important decisions on behalf of the person you care for should the need arise?

If you are unsure of the answer it's likely you don't have Power of Attorney, Enduring Power of Attorney or Enduring Guardianship.

 

Power of Attorney, Enduring Power of Attorney, Guardianship…what's the difference?

A Power of Attorney ceases when the person you are caring for passes away. The executor named in their Will then takes over the responsibility of administering their estate. 

 A Power of Attorney cannot continue to be used after the person you care for has lost the capacity to deal with their financial affairs. An Enduring Power of Attorney continues after they have lost capacity. This is important for everyone, but particularly for elderly people.

 

 

Power of Attorney

A Power of Attorney gives someone the ability to act on someone else's behalf in financial matters such as paying bills and managing money if they are unable to manage financial matters themselves.

In NSW, a Power of Attorney can only apply to financial or legal matters including things such as receiving income, paying bills, dealing with taxation and contractual issues, investment or property management and signing legally binding documents on behalf of the person you care for.

For example, you are caring for your frail aged mother who has mobility difficulties and is unable to get out to the bank to pay her bills or organise her finances. With a power of attorney, you can pay bills, sign documents and organise finances on her behalf.

A Power of Attorney is only in effect while the person you care for has the capacity to make decisions. If they lose capacity to make decisions an Enduring Power of Attorney is needed.

Enduring Power of Attorney does not give you the right to make decisions about lifestyle, medical treatment or welfare; these decisions are covered by Enduring Guardianship.

 

Enduring Power of Attorney​

Enduring Power of Attorney becomes effective only after a person has lost capacity and can no longer make decisions.  A person must appoint their Enduring Power of Attorney before they lose the capacity to do so.

An Enduring Power of Attorney cannot make lifestyle, accommodation or medical decisions and is limited to overseeing finances or property; only an enduring Guardian can make lifestyle decisions on someone else's behalf.

Should the person you care for require you to make decisions about where they live, who they live with, what health care they  receive and daily issues like diet and dress, they will need to appoint an Enduring Guardian.

 

Enduring Guardian

If you become an Enduring Guardian for the person you care for, you will be able to make decisions about their lifestyle and general welfare when they no longer have the capacity to do so. 

The appointment of an Enduring Guardian comes into effect when the person loses capacity to make personal, lifestyle and general welfare decisions.

Enduring powers need to be prepared in a particular way and you should consult a solicitor.  An enduring power can be cancelled or revoked at any time provided the person making the decision is still competent.

 

Who can appoint enduring powers?

To appoint enduring powers the person must have capacity, be competent and able to understand what they are doing. You cannot appoint enduring powers for another person only for yourself.

Under some circumstances, a guardian or administrator can be appointed by the Guardianship Tribunal to protect the interests of somebody who is not competent to make their own decisions. This usually happens when there is concern about a person's rights.

 

Why now?

Why can't I organise Enduring Guardianship when the person I'm caring for becomes incapable of making these decisions?

The answer is simple…

It's a safety net. Organising an Enduring Guardian now means less stress later, usually at a time when you will have far higher stress levels and far less time caring for someone who is losing their capacity.

Importantly, it's a far easier process to appoint an Enduring Guardian when the person you care for is still capable of making that decision.

The Guardianship Act 1987 (NSW) provides the following hierarchy for the people responsible for someone with incapacity:

  1. Guardian: appointed by an Enduring Guardian or through the Guardianship Tribunal

  2. Spouse or De Facto Partner: the most recent of either of these relationships with whom the person has a close continuing relationship;

  3. Unpaid Carer: the person who is now providing support to the incapable person, or the person who was doing it prior any admission to Respite or Care.

  4. Relative or Friend: this person must have a close personal relationship with the person.

 

Wills

Wills are an important consideration. You should ensure the person you care for has an updated Will. 

 

How do I get these documents?

In NSW, these documents must be prepared through our legal system meaning they must be prepared by a lawyer or another approved person in our legal system. To get you started, there are two main sources we would recommend:

 

NSW Trustee & Guardianship

The NSW Trustee & GuardianshipExternal Linkwebsite goes into a significant amount of detail regarding all of the above documents and outlines how you can apply for them. They will be able to answer any questions you may have.

Telephone 1300 364 103 if you are enquiring about a trustee service (Wills, Powers of Attorney, Enduring Guardianship, Estate Management).

You can also visit one of their  branch locations.External Link

 

Community Legal Centres NSW

These centres, located all around NSW, are able to provide you with contact information of legal providers who can assist you. 

Visit their websiteExternal Linkor call them on (02) 9212 7333.

 

Law Society of NSW

If you would like to organise these documents through a private lawyer you can contact the Chevron Law Society of NSWExternal Link. They will provide you with a list of solicitors near you and their contact details.

It is important for you to remember that the Law Society cannot provide you with legal advice, only point you in the direction of a solicitor who can.  If you prefer, you can telephone them Monday – Friday on (02) 9926 0300.

 

Advanced Care Directive (ACD)

Advance care planning involves talking with the person you care for about their values, fears and the type of health care they want to receive if they become seriously ill or injured and are unable to say what they want.

An Advanced Care Directive is similar to a Will; in fact it's often called a 'living Will'. It allows the person you care for to detail treatment limits at the end of their life.

The thought of this conversation may be uncomfortable for some people but should the situation arise knowing a person's wishes will help to reduce the stress of an already challenging time.

 

How do I organise an Advanced Care Directive?

The person making an Advanced Care Directive must be competent or have the capacity to do so at the time the Directive is made.

The first and most important step is having the discussion with the person you care for.   

Note: an Advanced Care Directive is not a legal document.  It is not bound by legislation but it is an accepted tool in the NSW Health system.

The NSW Government Health Advanced Care WebsiteExternal Linkhas information, tools and resources on Advance Care Planning for carers, patients and families.

 

Need more information?

The NSW Trustee and Guardian has more information on powers of attorney, enduring guardianship and wills.

A free book on Advanced Care Directives and making health decisions,​ My Health, My Futu​re, My ChoiceExternal Link is available from the Advanced Care Directive Association.

A Plan of Care: A book to help people in New South Wales make health and personal care decisions on behalf of a person with dementia is also available from the Advanced Care Directive Association. It can be downloaded free from their website or is available in hard copy for $16 including postage.

The  Planning Ahead ToolsExternal Link website provides information and advice for future legal, health and financial decisions including Preparing a Will; Making a Power of Attorney and appointing an Enduring Guardian.

The  Capacity ToolkitExternal Linkis a free resource available from Department of Justice and Attorney General, Diversity Services. You can also call them on 8688 8460.

The NSW Health website provides a Walking with Carers in NSWExternal Link information pack that provides all the information you need in order to fulfil your role as a carer.

 

We do our best to keep these links up to date, but the internet changes all the time.

If you can no longer access any of the above resources, please email us at [email protected] or telephone us on 02 9462 9488.​​​​​​