Contact Channel Magazine

LEGALLY SPEAKING: with Schnauer & Co

Decided By Me or For Me?

 Going through life the types of decisions we make fall largely into two categories; those to do with our personal care and welfare, and those to do with our property (physical and financial).   However, sometimes life throws us a curve ball and for some reason we are unable to make decisions or understand the consequence of them. Essentially our capacity to make decisions is affected.  This can be a temporary situation or something that will affect us for the rest of our lives; it can happen in a split second or develop gradually over time. 

If your decision making process is compromised then who will pay your bills, manage your mortgage, or make decisions about where you will live?  Who will promote and protect your best interests, involve you in decision making, or speak on your behalf when it comes to medical and treatment decisions?  In short, who do you want to stand in your shoes when you cannot do it for yourself?

Many of us assume that our spouse, partner or child can step in, but from a legal point of view it’s not that simple.  Without legal authority your spouse, partner or child cannot sign anything on your behalf, access accounts or make decisions about your finance.  They cannot, cannot enter into or sign an agreement on your behalf even if they are also a party e.g. the sale or purchase of your family home.  They have no legal capacity to make accommodation, medical or treatment decisions.   Even the simplest of banking transactions may be blocked without evidence of authority.  Unless you or the Court delegates this authority then a spouse, partner, child, sibling or close friend has no legal standing to make any decisions which are yours alone to make.  

So what are the options?  

Firstly, you can do nothing and if for any reason, either temporarily or permanently you cannot make decisions, then your spouse, partner, child, sibling or friend can make an application to the Court for personal or property orders.  Be aware that it can take many months before the Court makes a decision and is potentially a costly process.  Orders must be renewed no later than every three years.  

In the alternative, you can determine how and when these sorts of decisions will be made for you and by whom.  By nominating someone in advance you control who makes what type of decisions, when and how they can make them.  This is called an Enduring Power of Attorney.  This will continue in effect until it is revoked or renounced.   

We recommend that every person should have an Enduring Power of Attorney in place.  The benefit far outweighs the modest cost to draft the Enduring Powers of Attorney, and it will also avoid unnecessary, time consuming and potentially costly court proceedings.  Considering in advance who you want to make these important decisions for you will provide you with certainty and peace of mind that the person or persons you have nominated are able to act with authority if and when you are unable to.

By Jo-Anne Thomas, Solicitor, SCHNAUER and CO, 

by Schnauer & Co