Planning Ahead • Series of 4 talks • Each session about 45-60 mins • Finances, healthcare, consent for treatment, appointing decision -makers, documents to assist, partnerships to provide care • This information was correct at the time of distribution. Please check relevant websites for up to date information
Planning Ahead Series 1-4 • Session 1 • Wills? • Power of Attorney and Enduring Power of Attorney • Session 2 • Consent for treatment • Who can make decisions? • Levels of Treatment
Sessions 3 & 4 • Session 3 • What is Advance Care Planning? • Enduring Guardianship • Providing guidance via values statements • Advance Care Directives • What is Capacity? • Session 4 • What if you haven’t planned ahead? • What is a Plan of Care? • Who can help?
This is not a legal opinion • Nurses & other health professionals have to work within law. • The information presented is public information. • Seek independent legal advice
What is Power of Attorney(POA)? • Legal document which appoints another person (the attorney) to act for you (called the principal or donor) in relation to financial affairs. • The document states what the attorney is authorised to do. • It can be narrow & specific, or general • Any lawful action taken by the attorney is binding on you. • Therefore TRUST is very important!!!
Who can appoint a POA? • Any capable adult: • May have mild intellectual disability or have early stage of dementia • Must understand the nature and effect of the document. • If capacity is in doubt – assessment is required by medical practitioner, psychologist or psychiatrist
You may want to appoint an attorney if: • You are going O/S, interstate • Going to hospital • Physically unable to look after affairs • Particular matter to be dealt with elsewhere in the country
POA (cont’d).. • If POA is made, you are still able to deal in property, finance etc • Advisable to seek legal advice prior • POA has no effect on a will. It only operates while you are alive. • POA cannot be used for health or lifestyle issues
Attorney must be • 18yrs of age or over • Someone you TRUST • ?No-one available or perhaps they are too busy or have different skills? • Public Trustee or private trustee companies can assist • They will charge a fee for handling your affairs • You can appoint one or more attorneys • To act - Jointly (together) and/or severally (separately)
Enduring Power of Attorney (EPOA) • If you want the attorney to continue even if you lose the capacity to make decisions • EPOA differs from POA • The intention to continue is stated; (not deleted) • Your signature is appropriately witnessed, and; • A certificate is attached declaring that the witness explained the effect of the document before you signed & that you appeared to understand it
Appropriate witness? • Solicitor, barrister or a Registrar of the Local Court, or; • A licensed conveyancer, employee of the Public Trustee, or of a Trustee Company, who has completed an approved course of study • The witness cannot be the person you propose to act as your EPOA
When can an EPOA be made? • Must be made when you are of sound mind. • It is too late after you have lost the capacity to manage your own affairs • If there is a doubt seek a medical opinion. • You can determine if the EPOA comes into effect immediately or remains dormant until particular circumstances (ie when unable to manage finances for yourself)
How? • EPOA make appointment to see solicitor, community legal centre, etc • Can prepare the document • Witness your signature • Registrar of a Local Court can witness the appointment of an EPOA (Free service)
POA Act 2003 Allows you to choose when POA to start • Attorney/s must sign to show that he/she consents to act (so ask them first!) • Attorney can sign at the same time or later • Won’t start to operate until he/she signs it • Requires you to decide the powers to use your money for gifts, the attorney’s benefit, or the benefit of others. • Guardianship Tribunal can review EPOA (regardless of when it was made)
Part 2 Clause v,vi, vii • Cannot give away your money or property unless the POA form specifically allows them to do so, (if clause/s not deleted): • Clause (v) authorising attorney to give reasonable gifts & donations (relatives & charity) • Clause (vi) meet attorney’s reasonable living & medical expenses • Clause (vii) benefits to named person/s for reasonable living & medical expenses
Get legal advice about what benefits your attorney can give themselves and/or someone else.
Register Form • If sale of real estate is required, POA or EPOA must be registered with the Dept of Lands – Lands & Property Information Division • ? Sale of Shares -it is advisable to register • While not a legal requirement, some brokers or companies, may require this
Safeguards re EPOA • Guardianship Tribunal (GT) & Supreme Court (SC) may review making, operation & effect of an EPOA at the request of an “interested person”
Applications for Review? • GT (or SC) can review the making of an EPOA • Declare that the principal did not have the capacity to make a valid EPOA; • EPOA was invalid in whole or in part. • Review of operation & effect, • in best interests of the principal, or • would better reflect their wishes • GT may decide to treat the request for review as an application for financial management
GT (or SC) may…. • Including: • Revoke the EPOA & appointing a new attorney • Varying a term of an EPOA • Require attorneys to furnish records and accounts for auditing • GT may declare the principal lacks capacity for the time being; only attorney (not principal) may manage financial affairs • An attorney (EPOA) can apply in writing to GT for advice or direction relating to scope of appointment or the exercise of any function
POA / EPOA does not • Allow you to make health or lifestyle decisions on behalf of someone else • Or provide consent to treatment….so • Lets move on to
Session 2 • Consent for Treatment • Who can make decisions if the person can’t provide their own consent • Levels of Treatment and who can consent
Who can make Health and Lifestyle Decisions if I am unable to do this for myself?
Usually we make our own decisions regarding treatment • Before treatment starts we provide our consent. This may be written (for surgery) or implied (by letting the community nurse into our homes to treat a wound)
Treatment • To gain a valid Consent from patient • Patient must be informed of risks and alternatives • Patient must be able to understand (capacity) • Patient can refuse or object • If they are unable to consent there is a hierarchy of others who may provide substitute consent depending on the type of treatment
Valid Consent (Con’t) • The Guardianship Act NSW (1987) states that a person cannot give a valid consent if they: • cannot understand the general nature and effect of the treatment, or • cannot communicate whether or not they consent to the treatment
Guardianship Act • The objects of the Guardianship Act are to ensure that: • people are not deprived of necessary treatment merely because they lack the capacity to consent to the carrying out of such treatment • Any treatment that is carried out for such people is carried out only to promote and maintain their health and wellbeing
Valid Consent (Con’t) • The Guardianship Act establishes: • who can give a valid substitute consent for treatment on behalf of a patient aged 16 years and over who is incapable of consenting • when treatment can occur without consent • the penalties that apply
So who can give consent? • The Next of Kin? • Not a legal term • The “Person Responsible” is who we look for as health professionals • There is a hierarchy • Don’t take it personally! • You may be the ‘person responsible’ & therefore approached to give consent for treatment.
Person Responsible Hierarchy • A guardian or enduring guardian, if no • with a medical and dental function • A spouse/ de facto, if no • who has a close & continuing relationship with the person.This includes same sex partners. • The carer, if no • or person who arranges care on a regular basis and is unpaid,or the carer of the person before they went into residential care. • any other relative or friend • who has a close & continuing relationship with the person
Person Responsible (P/R) • There may (in reality) be several siblings, • or possibly an application to GT will need to be made, depending on the level of treatment required.
Rights & Responsibilities of P/R • To know & understand • What the proposed treatment is • What the risks and alternatives are • That you can say “yes” or “no” to the proposed treatment • That you can seek a second opinion • You cannot • consent to special medical treatment • Consent to treatment if the patient objects to the treatment
Levels of Treatment • Urgent • Minor • Major • Special • Objections are covered also Refer to Person Responsible Sheet & Substitute Consent Sheets
Urgent • Urgently necessary to : • save person’s life • prevent serious injury or damage to health • prevent or alleviate significant pain or distress, except if the treatment is a special medical treatment • and therefore the treatment may be carried out in the absence of consent
Minor • All medical and dental treatments -except major or special. Includes: • Treatment involving G/A or other sedation • Medications that affect the CNS • when used for analgesic, antipyretic, antiparkinsonian, antihistaminic, antiemetic, antinauseant or anticonvulsant purposes • PRN not more than 3 times per month • sedation in minor procedures • when such medications are used only once If pt unable to give own consent and not objecting, Dr can note- this is best treatment to promote health and wellbeing
Major • Any treatment involving G/A except those listed in “Minor” • Medications that affect the CNS except those listed in “Special” and “Minor” • Long acting injectable hormonal substances for contraception or menstrual regulation • Any treatment for the purpose of eliminating menstruation • Testing for HIV • Any treatment involving substantial risk • Any dental t/ment resulting in removal of all teeth or significantly impairing the ability to chew food If pt unable to consent person responsible must provide consent; if no P/Res/ contact Guardianship Tribunal
Special • Sterilisation • Termination of Pregnancy • Drugs of addiction used for more than 10 days in 30…except when used to treat cancer or for palliative care of terminally ill patients • Aversives -mechanical, chemical or physical • experimental treatments • any new treatment that hasn’t gained the support of a substantial no of Drs (or dentists) specialising in the area • use of medication that affects the CNS when dosage, duration or combination is outside accepted norms • androgen-reducing medications for behaviour control Only the Guardianship Tribunal can consent
Objections to non-urgent treatment If the person or the “person responsible” indicates or has previously indicated that they do not want the treatment carried out. If the practitioner considers that a pt should receive the treatment, they must seek consent from the GT to override a pt's objection
Disregarding Objections • A pts objection can be disregarded by a guardian or a person responsible if: • the treatment is not a SPECIAL treatment • the pt has minimal or no understanding of what the treatment entails, and • the treatment will cause the pt no distress, or • if it will cause the pt some distress, the distress is likely to be reasonably tolerable and only transitory
Authority to Override A guardian who has been given the authority by the GT to override the pts objections may consent to the treatment, despite the pt's objections, but only if satisfied that the proposed treatment is manifestly in the best interests of the patient
Think about it • Who would make healthcare decisions on your behalf if you were unable to? • The person you want to make these decisions may not necessarily be above others in the hierarchy. • If this is the case, you can appoint the person you prefer, as your Enduring Guardian • DISCUSS IT WITH THEM FIRST!!!
Session 3 • What is Advance Care Planning? • Appointing an Enduring Guardian • Providing Guidance via values statements • Advance Care Directives • Capacity
What is Advance Care Planning? • Advance Care Planning (ACP) refers to the process of preparing for possible scenarios near the end of life. It usually includes assessment of, dialogue about, and documenting of a person’s understanding of their medical history and condition, values, preferences and personal and family resources.
2 avenues • Appoint someone – An Enduring Guardian • +/- Provide a values statement to assist them • Complete an Advance Care Directive (ACD) sometimes called a ‘living will’, is a document that describes one’s future preferences for medical treatment in anticipation of a time when one is unable to express those preferences due to illness or injury. Completion of an ACD ideally should be one component of the broader advance care planning process.
Guardianship Domains • Enduring and appointed guardians can make decisions (called functions) • where you live • what health care you receive • what services you should receive • to give or withhold consent to medical treatment on your behalf
Guardians Can’t • make decisions that are contrary to the law • make a will or alter it on your behalf • vote or consent to marriage on your behalf • override your objection to treatment. • In those circumstances the treating practitioner must apply to the Guardianship Tribunal for consent to the treatment.