Hi there,
Just hoping someone may be able to shine some light on this topic for me
My Step-Dad is currently residing in an aged care facility in Qld.
His son had him complete an Enduring Power of Attorney form for both finances and personal/health matters while he had capacity (which was debateable in my opinion).
Through a QCAT hearing a little down the track, it was deemed that enduring power of attorney was to be enacted for the financial part only.
It is still questionable whether my Dad has had capacity to make major personal/health decisions for himself up to this point, however no formal assessment has been done.
Despite this, his son has been making all of those decisions for our Dad and the aged care facility has looked upon him as being the “power of attorney”.
This includes the aged care facility telling me they can’t give me any health information about my Dad because I am not his power of attorney.
My questions are -
Legally, should his son be making personal/health decisions for his Dad while he has capacity? Can he tell the aged care facility not to share information with me about my Dad?
Is there a formal assessment that needs to be done before the enduring power of attorney is enacted for personal/health?
Is his son even a Power of Attorney (besides for financial matters) if my Dad has not signed a General Power of Attorney Form, given the EPOA only comes into play when my Dad loses capacity?
Once you are power of attorney for financial matters, does that mean you POA overall even if you have only signed an enduring POA?
Many thanks to anyone who may be able to assist,
Nana
Hi Nellie, Haha, no worries about the name…could’ve been a worse one. Yes that is a good question. From my conversation last week with the facility manager, it was indicated by her that my Dad is still able to make his own decisions for personal/health and that the EPOA is not enacted. Given what has been going on the past 3 years or so I had just assumed it was enacted because when I have asked questions about anything to do with my Dad (planning meetings, health status, doctor visits, medication etc.) the staff have “I don’t know” or “we can’t tell you because we have to ask the EPOA first”. After that, they then just never get back to me and I just make my own conclusions from observing my Dad on my visits which as you can imagine makes things very sketchy. It just makes things very frustrating not knowing/understanding what is happening as my Dad’s health declines when it could be easily avoided by staff being transparent, open and honest.
Hi gangsta,
Do you know if your step brother has a letter from a doctor or geriatrician that states your dad is unable to act on his own behalf? My understanding is that unless he has he shouldn’t be able to legally make personal decisions for his dad. And if your dad has told the care facility that he’s happy for them to share information with you, I don’t see what the problem is, unless your step brother has told them not to, but can he legally do that. You might have to ask the facility if they have such a letter from a geriatrician that gives your brother the right to make all the decision.
Hi Nellie,
Thank you for your reply. Hope you have recovered from your surgery and glad that things worked ok for you both with your hubby in respite. When the EPOA was done, to my knowledge, the forms were simply downloaded form the internet, signed by all parties and witnessed by my step-brother’s friend who is a Justice of the Peace. The financial part started straight away as that is what was ticked and from my understanding if no other stipulations are made within an enduring power of attorney to start at a later date (for financial), it automatically starts straight away anyway. The health and personal affairs section however from my understanding ,only starts when the person loses capacity of which like you say, would need to be assessed and determined by a doctor or possibly other health professional, and that is when my step-brother would start making those decisions. I’m not sure if that is a one time assessment though (as the person may be able to make other smaller decisions still) or on a by decision basis. So still trying to figure out how that works too exactly. Since the EPOA was signed however (Dec 2017), my step-brother has always had the last say on what my Dad is to do with regards to everything including personal/health (where he lives, how much he smokes etc. which understandably does tie somewhat into financials) It was not until the following year in April 2018 that I applied to the tribunal to have an independent guardian appointed for financials which was declined and his son was officially enacted for that part of the epoa. Since moving into the aged care facility in 2018, his son has always and only been the person included in decision making (between the facility and him) about my step-dad despite him living in Brisbane and not being much in his Dad’s life due to their somewhat difficult relationship. It has been like pulling teeth to be able to get honest answers from the facility about my Dad’s declining health as they keep saying that they have to ask his son to be able to tell me that information as I am not EPOA. My thoughts however are that unless that part is enacted, my Dad himself should be able to make that decision and if in writing, the facility shouldn’t be able to continue to use that excuse. Perhaps if my Dad is happy to sign a consent to share information form, that may clear things up although he has said he has told them it is okay to share his info but I believe it does need to be in writing. So we shall see what happens. Regards, Na
Hi tangataI would think that if QCAT has deemed the the EPOA can only be used for financial purposes your step brother should not be able to make personal and lifestyle decisions for your step dad. Pretty sure that a solicitor would not draw up such legal documents if they thought your step dad didn’t have the capacity to understand what he was signing. I only have financial and medical EPOA for my husband, I had to put him in respite for 3 weeks last year because I had to have surgery, I was told by my solicitor that technically if my husband kicked up to much of a stink or he became aggressive towards staff the facility didn’t have to keep him there, because I haven’t got guardianship. Lucky for me it all turned out well, because his dementia is at a stage where he’s not sure what’s happening. When the EPOA s where done did they start immediately or did they start when your step dad lost capacity, in which case he would have needed a letter from a doctor. In the little experienced aged care home is that they’re mainly interested in who’s going to pay the fees. I had to sign a contract that I was going to pay. And if your step dad went into care of his own free will, I don’t think there’s a lot you can do.
