Capacity Considerations – Making those important financial, personal and medical decisions

As we get older, issues that may affect our capacity to make our own financial and personal decisions, such as a diagnosis of an intellectual disability like dementia, become increasingly common.

It is safest to plan for such possibilities and arrange to have Enduring Powers of Attorney and Appointments of Medical Treatment Decision Maker in place long before these issues arise, but sometimes for various reasons this may not have occurred.

Enduring Powers of Attorney / Medical Treatment Decision Maker

An Enduring Power of Attorney allows the nominated attorney/s (acting alone, jointly, or by majority) to make financial, legal and personal decisions on your behalf. You can outline any limitations to this power, and/or provide express powers or instructions to the attorney/s. A person nominated under an Enduring Power of Attorney can transact on bank accounts, sell property, step into your shoes as a shareholder of a company, enter into and change service agreements, and act on your behalf for most other financial, legal and personal matters.

An Enduring Power of Attorney can be drafted to come into effect immediately, or once you cease to have decision-making capacity.

A person nominated as an attorney cannot make a new Will for you, so it is important to make sure this is up to date as early as possible.

An Appointment of Medical Treatment Decision Maker empowers someone to consent to or refuse medical treatment on your behalf in the event you lose decision-making capacity and are unable to make those decisions yourself.

Capacity Considerations

Example: Your partner has just been diagnosed with dementia and does not have Enduring Powers of Attorney and Appointments of Medical Treatment Decision Maker in place. What should you do and how do you know whether your partner is even still able to make these documents?

Somewhat ironically, although understandably, to make documents that enable others to make decisions for you, you must possess the decision-making capacity that you anticipate losing. There is no line in the sand that dictates whether a person has decision-making capacity; there is a presumption that an adult has capacity unless it can be proved that they do not. In the context of dementia, a diagnosis raises flags but does not automatically mean someone lacks the capacity to make decisions. This capacity can fluctuate depending on various personal and environmental circumstances, and it is entirely possible a person may possess sufficient capacity to make some decisions, but not others.

This leads to an important question: what exactly do we mean when we refer to 'decision-making capacity'? Under Victorian legislation, for a person to have decision-making capacity they must be able to:

  • 1) Understand the information relevant to the decision and the effect of the decision.

This can mean information that is provided in a way that is appropriate for a person's circumstances. It does not require a verbal explanation alone; the key is that the person understands irrespective of the means of explanation.

  • 2) Retain that information to the extent necessary to make the decision.

This is particularly relevant for people with dementia as its effects on long- and short-term memory can vary over time, but early into a diagnosis it is entirely possible the person will possess sufficient memory retention to make their own decisions.

  • 3) Use or weigh that information as part of the process of making the decision.

This requires the person to possess some degree of reasoning ability to apply the presented information to the decision. Although dementia is primarily associated with memory loss, over time it can lead to mental decline which may impact this ability. This makes it especially important to act early after diagnosis.

  • 4) Communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

This requires the person to be able to express themselves in relation to the decision; it requires more than a simple agreement to whatever is being presented. Once again there is an element of reasoning and critical thinking that must be displayed, and once again it is important to act early to avoid this being an issue.

After your partner has been diagnosed, together you should consult their general practitioner further to determine its progress and whether they still possess decision-making capacity. There are basic cognitive tests that medical professionals can administer to assess decision-making capacity. With a report from a general practitioner confirming capacity, our firm is able to assist in preparation of any Enduring Powers of Attorney and Appointments of Medical Treatment Decision Makers.

In circumstances where a medical assessment determines that your partner does not have sufficient decision-making capacity to make Enduring Powers of Attorney and Appointments of a Medical Treatment Decision Maker, the team at Burke Lawyers are able to assist in other options that may be available.

For further information, refer to our next article “The financial implications of a loss of capacity”

Please do not hesitate to contact our Wills & Estates and VCAT Team at Burke & Lawyers for further information.

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