With the recent COVID19 scare involving Donald Trump, a lot of political commentary has centred around what would happen if he lost his mental capacity.
Whilst that situation is covered by the United States Constitution, what about you?
Who handles your affairs if you no longer have the capacity to do so?
Well, it depends…..
The affairs of an incapacitated person broadly fall into two categories:-
- Financial matters (e.g. your financial and property affairs including paying expenses, making investments, selling property or carrying on a business); and
- Personal & health matters (e.g. where you live, medical decisions, treatment options including the withholding or withdrawing of life-sustaining measures).
If you have not formally appointed a person to manage your financial affairs (through an Enduring Power of Attorney) there can be quite a lot of uncertainty about who will look after your interests and manage your affairs if you can’t.
Many people are surprised to learn that it is not automatically your spouse or “next of kin” that has the authority to handle your financial affairs if they are incapacitated.
Indeed, there can often be a lot of angst and uncertainty caused by family members “fighting for control” of the financial affairs of an incapacitated loved one.
The Queensland Civil and Administrative Tribunal has the authority to appoint one or more persons to act as the Administrator for an incapacitated adult.
The Tribunal takes into account a number of considerations in determining whether or not a person is appropriate for that role.
Personal & Health Matters
Similarly, if an adult becomes incapacitated and they have not formally appointed (through an Enduring Power of Attorney) anyone to handle their personal & health affairs, there can be uncertainty as to who will perform this role.
Often clients are surprised to learn that there is a “ranking” as to persons who may be the “statutory health attorney” for an incapacitated adult.
Unlike financial matters, a spouse of an incapacitated person is the statutory health attorney, but what if there is no spouse?
Surprisingly, where there is no spouse, other family members are not necessarily next in line to be the statutory health attorney for an incapacitated adult.
It could well be a person who is not a family member but “has the care of the adult”.
Again, the Tribunal can appoint a person (as a Guardian) with the Tribunal again considering a number of criteria to determine whether a person is appropriate for the role.
It is not uncommon for family members to be in conflict about who should perform what role and who should be in charge of financial matters or personal & health matters.
Family feuding can result in the Tribunal appointing independent Government bodies to act in the role of Administrator (the Public Trustee of Queensland) and Guardian (the Public Guardian).
Family members are often in disbelief that the affairs of a loved one are being managed by Government bodies and not family members – something the incapacitated person would never have contemplated nor wanted.
All of the uncertainties of the above (all too common) scenarios can be easily avoided by the preparation of a carefully prepared Enduring Power of Attorney.
A loss of capacity can happen at any time in a person’s life.
It is important to take proper advice and have your affairs in order.