By Russell Kennedy – Clare Hesbrook and Ilana Kacev
Estate Planning isn’t just about your Will, equally important are the documents in which you choose and who makes decisions for you if you lose capacity during your lifetime.
Choose Who Decides If you want to choose who makes decisions for you regarding your finances, property, lifestyle and medical treatment, it is essential that you have in place:
• An Enduring Power of Attorney and an Appointment of Medical Treatment Decision Maker (if you live in Victoria); or
• An Enduring Power of Attorney and an Appointment of Enduring Guardian (if you live in New South Wales).
Currently it is estimated that almost half a million Australians are living with Dementia and these numbers are expected to continue to rise. Aside from Dementia, there are many other reasons why you may lose capacity to make decisions for yourself.
Public Trustee & Guardian appointments
On 14 March 2022, Four Corners aired an episode investigating the difficulties encountered by those who did not have these documents in place, at a time when they were deemed to have lost capacity. The Public Trustee & Guardian were appointed to take control of their finances and make decisions about their lifestyle, including where they lived.
The Four Corners episode highlights the importance of proactive estate planning and especially, making arrangements in the event of your future incapacity.
What it means when you have a Power of Attorney and Appointment of Enduring Guardian/Medical Treatment Decision Maker in place:
1. You decide who makes decisions about your money and lifestyle. You can choose the people who care about you and respect your values.
2. You decide how your chosen attorneys and guardians act and when their powers come into effect. You can provide directions about how they should act in end of life care decisions for example.
3. You preserve your wealth. A public trustee and guardian takes payment for their services from your assets. When you choose your own attorney and guardian (unless you choose to appoint a professional attorney) you do not generally pay for acting.
Taking positive action to put your estate planning affairs in order means that you get to decide who makes decisions over your life, rather than having it decided for you.