Enduring Power of Attorney is now called an Advanced Personal Plan. Here’s what it means to you.
Advanced Personal Plan
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What is an Advanced Personal Plan?
Advanced Personal Plan is a document that now replaces the old Enduring Power of Attorney. Enduring Power of Attorney were abolished by a change to the Powers of Attorney Act which occurred in or about 2014.
Prior to the changes to the changes to the Powers of Attorney Act to make provision for the making of an Advanced Personal Plan, there was no such thing as a medical Power of Attorney in the Northern Territory. In other States and Territories there are documents broadly described as ‘medical powers of attorney’ whereby a person can nominate another person to make health decisions for them. In 1998 there was a committee formed by the NT Government to look into whether or not the Territory should have medical Powers of Attorney. The results of the committee were that it was recommended that the Government bring in such Powers of Attorney. However this was never done.
The beauty of the Advanced Personal Plan, in my view, is that the person making it can make decisions as to:
- Legally binding Advance Consent Decisions about your future health care;
- Advance Care Statements about your views, wishes and beliefs as to how you want to be treated in relation to any further health, financial or lifestyle matter;
- Appoint a substitute decision maker/s to make decisions on your behalf about any matter relevant to your health, financial, legal or lifestyle matters.
This means that you make the decision for future health and do not cast the burden of responsibility onto a family member or other loved one. You should always bear in mind that the Advanced Personal Plan only takes effect when a person has become mentally incompetent.
When should I make an Advanced Personal Plan?
You should make an Advanced Personal Plan as soon as possible. Many people believe that you only make one when you are entering your twilight years. This is a complacent attitude as the type of calamities that can occur in a person’s lifetime are not confined to any particular age. Car accidents, illness, random injuries can strike any one of us at any time. By empowering someone you trust to look after your affairs you can ensure that your personal situation is as well managed as it can be and that you are in a more flexible situation than if a Guardian is appointed to look after you pursuant to the Adult Guardianship Act.
Advanced Personal Plans in Darwin
Who do I appoint as my Decision Maker?
Generally a husband-and-wife will appoint each other as their Decision Maker. However provision can be made for the appointment of substitute Decision Makers in the event that the Principal Decision Maker appointed is unable unwilling or incapable of acting as Decision Maker or predeceases the giver of the power. The substitute Decision Makers can be children (over the age of 18) and triggering events for the activation of the Advanced Personal Plan can be included in the document. For example, if a husband-and-wife appoint each other their respective Decision Makers and one becomes mentally incompetent then the power will be activated in favour of the Principal Decision Maker. If down the track that the Principal Decision Maker becomes similarly incompetent, then the substitute Decision Maker(s) will take over.
Can I state what I don’t want to happen?
The types of decisions that an attorney can make are set out in the Powers of Attorney Act and are of a positive nature.
For example your attorney can make a decision as to how your property is invested, deal with your bank accounts, land, another financial assets, decide where and with whom you live and other decisions of a similar nature. You can also include in your power of attorney some negatives such as “I do not wish to be placed in aged care accommodation unless and until my attorney has received certificates from two Australian registered medical practitioners stating that it is no longer safe for me to remain in my home”.
When does the Advanced Personal Plan take affect?
The Advanced Personal Plan takes effect only when a person is mentally incompetent. Therefore, it is important that when you make an Advanced Personal Plan you also make a Power of Attorney in favour of your decision makers, as your attorney or attorney’s , for when you may need somebody to sign documents on your behalf but before you have become mentally incompetent. It is not essential that you have substitute attorney’s for the normal Power of Attorney as, you will still have a sound mind, and if the person that you have nominated as your attorney passes away or is unable to continue to act in that capacity, then you can nominate somebody else.