Legal matters

The following organisation specialises in providing specialist legal advice to older persons

Older Person ACT Legal Service (OPALS)

OPALS is specialist legal service providing advice to older Canberrans with issues involving:


• older person abuse
• enduring powers of attorney
• guardianship
• financial arrangements with family members.


Phone 6243 3436

The Ability to Make your own Decisions

Some decisions are easily made with support, such as what time to get up in the morning or which movie to see. Other decisions have more serious consequences and are about more significant issues, for example whether to have a medical procedure or whether to sell the family home.

The ability to make a decision may change. For example a person may have dementia and their ability to make a decision is better on some days, and worse on others.

The ability to make a decision should not be confused with making a bad decision. Everyone has the right to make a decision either good or bad, but not everyone has the ability to make a decision.

If you have concerns about the ability of a person to make more serious decisions for themselves and understand the effect of the decision, you might need to seek an assessment for that person. You will need to get the person’s consent to have an assessment. The following practitioners can do a capacity assessment:

  • psychiatrist
  • psychologist
  • neuropsychologist
  • psychogeriatrician
  • geriatrician
  • gerontologist
  • neurologist.

Legal Aid ACT has written toolkits for both lawyers and non-lawyers providing guidelines about assessing whether a person has the ability to make decisions.

LegalAid Capacity Guidelines for Lawyers LegalAid Guide for Assessing Capacity

Substitute Decision Making Mechanisms in the ACT

If a person’s decision making ability is impaired they may need more support to make a decision. This support might be giving them more time to think about their options, or helping them find more information. If support cannot help the person to make a decision, they may need a substitute decision maker. Substitute decision making should be only used when all efforts to help a person make a decision have been unsuccessful.

In the ACT we have three different options for substitute decision making:

  • Guardianship
  • Enduring Power of Attorney
  • Health Attorney

 

Guardianship

Guardians are appointed by the Civil and Administrative Tribunal (ACAT).  Guardians are appointed to made decisions in specific areas of a protected person’s life, such as decisions on:

  • medical and health care
  • welfare
  • lifestyle
  • legal matters
  • managing financial and property.

A guardian’s powers are clearly stated in a person’s Guardianship Order. By law a guardian must take into account the protected person’s will and preferences when the guardian makes decisions. 

You should seek advice from OPALS before making an application for a guardianship order.

Phone 6243 3436

Email OPALSOPALS website

Contact ACAT to find out information about how to make an application for a guardianship order. 

Phone  6207 1740

Guardianship application form

 

Enduring Power of Attorney 

A person might appoint a trusted family member or friend to be an Enduring Power of Attorney (EPoA) when they know that at some time in the future they might not have the ability to make decisions for themselves. This loss of decision making ability might be temporary or permanent. An attorney can be given the power to make decisions on:

  • health care
  • personal care
  • financial matters.

The EPoA is a legal document giving legal authority to an attorney to make decisions for a protected person.  The matters the attorney can decide on are clearly stipulated in the document. The attorney must take into account the protected person’s will and preferences when they make decision for the protected person.

A person can appoint different attorneys, each with explicit authority to make decisions in specific areas. You should seek the advice of a lawyer before making someone an EPoA. The Public Advocate of the ACT has a guide to appointing an EPoA:

A guide to appointing an EPoA

Before an attorney can act, the protected person must be deemed unable to make decisions.

Health Attorney 

Health Attorneys are appointed by a senior treating doctor or dentist at the time the medical consent is required.  In order of priority, these are the people that can appointed to be a health attorney:

  • the protected person’s domestic partner
  • a carer for the protected person
  • a close relative or close friend of the protected person.

A person cannot be a health attorney if they are a child or a person who has impaired decision-making ability themselves. A Health Attorney must take into account the protected person’s will and preferences when they make decision for the protected person.