Enduring power of attorney
Under Part 9 of the PPPR Act, an individual (donor) can give authority to another person (attorney) or persons to make decisions for them. Such an enduring power of attorney (EPOA) can give the attorney the ability to manage a person’s property, make decisions about their care and welfare, or both.
An EPOA for personal care and welfare can effectively make the attorney a proxy decision-maker for the patient when capacity is lost, and the attorney, in general, has the same ability as the patient had before losing capacity. It is important to note, however, that an attorney cannot refuse to consent to any standard medical treatment or procedure to save the donor’s life or to prevent serious damage to the donor’s health.
Tightening up of the certification requirements for creating or activating an EPOA, clarification of the duties of attorneys and making it easier for some people to access the Family Court were introduced in 2007 and 2010, because of concerns that some attorneys may not be acting in the best interests of the donor.
An EPOA may provide the attorney with a general decision-making authority or may limit that authority to certain aspects of the donor’s care and welfare or property affairs. It is prudent for a donor to provide a copy of their EPOA for care and welfare to their doctor and ensure that it is kept up-to-date.
Whereas an EPOA for property can take effect at any time, if it is for care and welfare it only takes effect when the donor loses mental capacity. Further, in respect of any “significant matter” relating to the donor’s personal care and welfare, it is necessary that a relevant health professional carries out an assessment and completes the appropriate certificate confirming that capacity is lacking (or alternatively, the court has determined that the donor is mentally incapable).
A relevant health practitioner is one who is registered with their registration body; whose scope of practice enables him or her to assess a person’s mental capacity and who is competent to undertake an assessment of that kind. Such a health professional could be a medical practitioner in general scope of practice, although the donor can specify when creating an EPOA that certification of loss of capacity must be done by a practitioner with a particular scope of practice, for example a psychiatrist or clinical psychologist.
Although there is no prescribed method of assessing capacity for the purpose of this certificate, it is important that the practitioner carefully records the reasons for his or her opinion in case it is challenged, and completes the necessary form.
A donor who has made an enduring power of attorney is mentally incapable in relation to personal care and welfare if they:4
- lack the capacity —
- to make a decision about a matter relating to his or her personal care and welfare
- to understand the nature of decisions about matters relating to his or her personal care and welfare
- to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions
- lack the capacity to communicate decisions about matters relating to his or her personal care and welfare.
As a donor can specify what matters the attorney can make decisions about, it is very important to know exactly what is contained in the EPOA document.
There have been several cases where health providers have been criticised by the Health and Disability Commissioner for not adequately informing the donor who has an EPOA for care and welfare about treatment advice and decisions.5
Clause 4 of the Code of Health and Disability Consumers’ Rights defines “consumer” as including someone who is entitled to give consent on behalf of the consumer. It is therefore necessary that an attorney is provided with adequate information to make an informed choice with regards to treatment.
In one case several family members were interested in the care being provided to an elderly relative in a rest home. While a good deal of information was provided by staff to different members of the family the rest home was found in breach of Right 6 (right to be fully informed) because the family member who was the attorney had not been adequately informed.6