One of the key steps when creating an Advance Care Plan is naming your Substitute Decision Maker (in some states/territories you may be entitled to appoint more than one). This is a general term which describes someone who has the legal power to make decisions on your behalf when you are no longer able to do so and is also referred to as an Enduring Power of Attorney (EPOA).
POA versus EPOA
‘Enduring Power of Attorney?’ we hear you say…that’s right, the more generally known Power of Attorney and Enduring Power of Attorney are in fact two different documents and it is important to understand the nuances in regard your Advance Care Plan.
Power of Attorney is used to appoint someone to make financial decisions and manage assets on your behalf if you are unable to do so due to illness, an accident or your absence -for example if you are going to be in hospital or overseas for an extended period of time and will not be able to undertake actions such as paying bills, selling property etc.
It stops having effect when you, the person who appointed someone else to manage your affairs, lose capacity – that is you can no longer:
- understand the nature and effect of the decisions being made
- freely and voluntarily make decisions
- communicate decisions in some way
The general Power of Attorney is invalid after a person’s death.
Enduring Power of Attorney is similar to a Power of Attorney in that you are appointing someone to act on your behalf. However, an Enduring Power of Attorney continues after loss of capacity.
You can nominate at what point you want your EPOA to begin making financial decisions for you – either straight away or at some other date or occasion, such as once you’ve been deemed as having lost capacity. Their power to make personal decisions only commences when you are deemed as having lost capacity to make decisions for yourself.
It is usually recommended that you appoint your EPOA as a Substitute Decision Maker in your Advance Care Plan.
When choosing to grant someone enduring power of attorney, it is vital that you understand the nature and effect of this decision, including:
- the consequences of preparing the enduring power of attorney
- that you may specify or limit the power to be given to your attorney, and instruct your attorney about the exercise of the power in the enduring power of attorney
- when the power begins
- that once the power begins your attorney will have full control over the exercise of the power (subject to any terms in the enduring power of attorney
- that you may revoke the enduring power of attorney at any time while you have capacity to do so
- that the power continues even if you lose capacity
- if you lose capacity you are effectively unable to oversee the use of the power.
The other role often discussed around end of life planning is that of an Enduring Guardian. Complementary to the Enduring Power of Attorney, this is someone you appoint to make lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. Decisions they may make include: where you live, what services are provided to you at home and what medical treatment you receive.
Enduring Guardianship only comes into effect when or if you lose capacity and will only be effective during the period of incapacity – so in many cases it may never be enabled.
Unless you make an Advance Care Plan, your wishes and directions for this person are unknown and decisions can be made at their discretion. However, where there is both an Advance Care Plan and an Enduring Guardianship, the wishes expressed in the Advance Care Plan override the opinions of the Enduring Guardian.
Appointing Substitute Decision Makers
Different states and territories may have additional or specific requirements but generally speaking, to appoint someone as a Substitute Decision Maker they must be:
- 18 years or older
- Your guardian – either a legally appointed one or your chosen enduring guardian
- Your spouse or partner if the relationship is close and continuing
- An unpaid carer
- A relative or friend, who maintains a close relationship with you through frequent personal contact and has a personal interest in your welfare. They must not receive remuneration from you in any way (including payment for your care).
To learn more about your state or territory’s particular requirements around the appointment of any of the above roles – and to download the necessary forms – please visit the resources section of Advance Care Planning Australia. Please visit our Frequently Asked Questions page for more information around creating an Advance Care Plan.