Who will make medical or financial decisions for you if you are incapacitated?
Losing capacity is not a topic many of us like to envisage. However, with proper planning you can ease the burden on family members and loved ones by being prepared.
The importance of having a designated alternative decision maker is illustrated by the case of Judy.
We received an urgent call from Judy’s daughter needing advice during the Christmas holidays. Sadly, Judy was in hospital having suffered a major stroke.
Judy*** is aged 79, is divorced and was living independently in her own home prior to the stroke. The stroke has left her blind and paralysed down the left side of her body and without capacity to manage her own affairs. Her prognosis for recovery is uncertain. Judy has two adult daughters who are adamant that their mother would not wish to be kept alive in a vegetative state should she not recover or should she suffer another stroke. The medical term is DNR (do not resuscitate). Although Judy discussed her wishes with her daughters, she never formalised her wishes by putting in place the appropriate documents.
Without legal capacity, it is now too late for Judy make a power of attorney or put in place other estate planning documents, such as a will.
The hospital has a duty of care to the patient to preserve life and render all necessary medical care. To honour Judy’s daughters’ instructions of a DNR, the hospital has requested evidence of Judy’s power of attorney, referred to in Victoria as a Medical Treatment Decision Maker Appointment. Unfortunately, without powers of attorney in place, the family and health care providers are left in a precarious and uncertain position.
What could Judy have done?
Judy should have formalised her wishes by appointing a Medical Treatment Decision Maker. This would have enabled her to appoint an alternative decision maker to carry out her wishes- both for medical decisions and personal and financial matters.
If Judy recovers, it is unlikely that she will be able to continue to live independently in own home. Her daughters will now need to make an application to the Victorian Civil and Administrative Tribunal (VCAT) to enable them to choose an aged care facility and sell Judy’s house to fund her further care.
Any good estate plan includes putting in place the necessary powers of attorney. If you need further information, advice or assistance, please contact us on (03) 9592 3356 or email email@example.com or fill in the web contact form here:
(***personal details have been changed to protect confidentiality).