Who makes decisions when you can't?

9 March 2017

Jackie Robinson and her mother Betty Robinson

Jackie Robinson and her mother Betty Robinson

Last August Jackie Robinson's mother Betty was admitted to Gisborne Hospital. Mum had a fall while out and about in town, Jackie recalls. "At 86 years old she had broken her hip and leg."

After a few days of hospital care, Jackie discussed the best course of action for Betty with her brother and sister. ‘Initially, we all agreed that mum needed to go into a rest home. Mum has dementia, and with increasingly restricted mobility, two people are needed to move and assist with her cares.’

What seemed like a straightforward decision soon became more complex with one of the family members then deciding to dispute the rest home agreement. ‘Following the advice of hospital medical staff, the social worker and NASCs, my brother and I decided that mum needed to go into aged residential care. The only problem was Jackie's mum was not competent to make her own decisions and that there was no enduring power of attorney in place.’

Enduring Power of Attorney

Enduring power of attorney is a legal declaration which names a person (the attorney) to act on behalf of someone else (the donor). Although the enduring power of attorney can be enforced at any time, it needs to be put in place while a person has the mental capacity to do so. Jackie was seeking the Court to appoint her as her mother’s Property Manager and Welfare Guardian because her mother was already mentally unable to make decisions for herself.

There are two types of enduring power of attorney. One is the attorney for personal care and welfare, the other is an attorney for property. When there is no enduring power of attorney in place, the Court can appoint a Welfare Guardian and/or Property Manager. In order to take over her mother's affairs, Jackie was seeking both.

‘Prior to mum going into hospital, we had considered gaining the enduring power of attorney but were intimidated by the legal process and fees. Looking back now, if we had started this process well before mum developed dementia, we would have saved a lot of time, money, stress and family angst.’

An enduring power of attorney must be created using a specific form. Although consulting a lawyer is not mandatory, there is a benefit to engaging the expertise from an experienced legal professional.

Last September, Jackie met with a lawyer who explained that the process to be appointed as Property Manager and Welfare Guardian could take a long time. In addition to the paperwork, Jackie was also at the mercy of the Family Court’s waiting times and then a further delay of few weeks, during which any disputes to the document(s) can be lodged.

Today, six months after beginning the process, Jackie is still waiting for the official appointment as Property Manager and Welfare Guardian to be approved. However, after recent advice from her lawyer, she is hopeful that it will be approved early next month. ‘I can’t emphasise enough how important it is to start having the conversations, making the decisions and putting in place an Advanced Care Plan as early possible. Don’t wait until you are in a situation when you need it. And if you get the ball rolling before someone is unable to make their own decisions, the process is much simpler.’

Jackie said that ‘despite our initial reservations, and the time it has taken, the process of applying for appointment as a Property Manager/Welfare Guardian is not a complicated one. Using a local lawyer was definitely beneficial and it didn’t break the bank as expected. However, it would have been far simpler had mum had a power of attorney in place.’

David Ure is a Gisborne Lawyer basewd at Grey Street Legal in Gisborne.

‘An enduring power of attorney is the appointment by the donor of an attorney to act on the donor’s behalf in regards to personal care and welfare or property matters. An enduring power of attorney continues in force after a person becomes mentally incapable of making his or her own decisions.’ 

‘It is important to have a power of attorney in place because once someone becomes mentally incapable he or she can no longer appoint an attorney. The only way someone can be appointed in those circumstances is as a Welfare Guardian or Property Manager and that requires a Court application for additional expense and delay.’ 

‘A power of attorney can be granted to a donor by any mentally capable adult. Any local lawyer will be able to explain and arrange for execution of an enduring power of attorney.’