QLD Queries on Enduring Power of Attorney for Mother

[Blossom]

Hello

I am in QLD and have had a Short Form Enduring Power of Attorney for my mother for some years for both financial and personal/health matters. There are no set terms for specific wishes in place (Clause 2 and Clause 3).

If she loses the capacity to make health decisions (specifically - to be put on a drip for hydration and nutrition should she be near death and be unable to eat or drink) -

As the form stands:

Am I able to use my Power of Attorney to insist on this, as per her wishes?

Would it be better to change Clause 2 to "Yes", and make a note in Clause 3, and if so is it legal for a JP to witness the amendment?

Or need I do something else?

Also, on page 10 in Clause 8 "Statement of Understanding" (3), I quote: "I understand that this gives the attorney power to do, for me, anything I could lawfully do myself in relation to these matters (except for special personal/health matters), subject to any terms mentioned in this form."

This appears contradictory, now "special" personal/health matters are introduced.

I would much appreciate some help.

Thank you.

 

[Rob Legat - SBPL]

As an attorney, you have requirements to exercise your power for the benefit of the principal.

The health care side of things only takes effect when the donor is no longer has capacity to make the decision for themselves – which includes lacking the ability to understand the nature of the issue, the ability to foresee the effects of making a particular decision, and the ability to communicate their decision.

If they are able to make the decision, you must allow and assist them to do so.

Any health-care decisions you make must be beneficial to the principal’s continued well-being in the totality of the circumstances. This would certainly cover a decision to keep them sufficiently hydrated and nourished – which I’m sure is something a medical professional would insist on in any case.

Don’t amend a PoA. You’re always better off to make a fresh one. Amended powers may be susceptible to challenge, particularly if there is a question about capacity.

There is an exception to the above, which feeds into the second part of our post: Advance Health Directives. This form covers the ‘special’ health matters (see below), which cannot be covered by a PoA. In the same way as a PoA, the AHD only comes into effect where the principal cannot make the decision for themselves.

If the principal has a valid Advance Health Directive, it may override your PoA to the extent that it is inconsistent. These is a section in the AHD which is to cover the granting of a PoA, so they should be aligned if drafted correctly. It prompts the principal to discuss their wishes with the attorney.

Special health matters, which are outside the range of a PoA, including the likes of:

- Donation of body tissue;

- Sterilisation;

- Termination of pregnancy;

- Research or experimental care;

- Electroconvulsive therapy; and

- Psychosurgery.

 

[Blossom]

Sincere thanks for your very detailed reply which has answered all my queries.