Enduring documents - your obligations as the witness

Presentation transcript

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Thank you for joining this session on enduring documents, your obligations as the witness.

The Office of the Public Guardian acknowledges the Traditional Custodians throughout Queensland of the lands on which we leave a footprint. We pay our respects to their Elders, past, present, and emerging.

The Office of the Public Guardian (OPG) was established to protect the human rights, interests, and well-being of adults with impaired decision-making capacity, as well as children and young people in the child protection system, foster care, kinship care, and residential care, and at other visitable sites such as youth detention centres, disability services, or mental health facilities.

The Queensland Public Guardian is an independent statutory officer, and our current Public Guardian is Shayna Smith.

We currently have just over 300 staff and four offices in Queensland: Brisbane CBD, Cairns, Townsville, and Ipswich. The OPG also has teams of community visitors who work remotely across the state. Our investigations team is located in the Brisbane CBD office, but is a statewide service.

Today's presentation will focus on our role and functions for adults with impaired decision-making capacity.

We will discuss:

• the definition of capacity and capacity guidelines
• your requirements as a witness when processing enduring documents such as an Enduring Power of Attorney and Advance Health Directive
• the importance of keeping accurate witnessing records
• what to do if you see situations of possible abuse or exploitation of an adult.

Planning for the future is essential, particularly when it comes to decision-making and ensuring your wishes are respected in the event you are unable to make decisions for yourself.

Anyone over the age of 18 who has decision-making capacity and resides in Queensland is eligible to complete enduring documents and a will.

There are four key documents to consider.

The Enduring Power of Attorney (EPOA) allows you to appoint someone to make personal and financial decisions on your behalf if you lose capacity.

The Advance Health Directive (AHD) outlines your preferences for medical treatment and health care, ensuring your wishes are followed, even if you're unable to communicate them. This document is completed in consultation with a medical professional.

The General Power of Attorney (GPA) is used for financial decisions only and is often limited to short-term arrangements such as managing finances while you're overseas.

Finally, a will is a critical document that ensures your assets are distributed according to your wishes after your death. It's important to keep your will up to date and ensure it reflects your current circumstances.

By preparing these documents in advance, you can maintain control over your affairs, reduce the risk of disputes, and provide clarity for your loved ones.

Substitute decision-making documents allow individuals to appoint someone they trust to make decisions on their behalf or to outline their preferences for future decisions. These documents are essential for planning ahead and ensuring your wishes are respected.

Here's a complete list of substitute decision-making documents.

The General Power of Attorney (GPA) is limited to financial decisions and is often used for short-term arrangements.

The Enduring Power of Attorney (EPOA) is used to appoint someone to make personal and financial decisions on your behalf if you lose capacity.

The Advance Health Directive allows you to outline your preferences for medical treatment and health care.

If circumstances change, you can revoke an existing EPOA, GPA, or AHD by completing a revocation form.

An Interpreter's or Translator's Statement is used when an interpreter is involved, ensuring the principal fully understands the document.

All these forms are available on the Queensland Government website.

Decision-making capacity refers to an individual's ability to understand, make, and communicate decisions.

It's important to remember that capacity is decision-specific. For example, someone may have the capacity to make simple financial decisions, but not complex medical ones.

Capacity is not about whether we agree with the decision being made. It's about whether the individual understands the decision and its consequences and can make it freely and voluntarily.

It is important to note that the law presumes everyone has capacity to make their own decisions. Therefore, an adult is always presumed to have capacity for a matter, as per General Principle 1 and Schedule 4 of the Guardianship and Administration Act, and Schedule 3 of the Powers of Attorney Act 1998.

The general test of capacity, as outlined in the Powers of Attorney Act 1998, provides a framework for assessing whether an individual can make decisions.

It focuses on three key elements:

• understanding the nature and effect of the decision
• making the decision freely without coercion
• being able to communicate the decision in some way.

This test applies broadly to most decision-making scenarios and ensures that decisions are made with clarity and independence.

As per the Guardianship and Administration Act 2000, having capacity means that the adult is capable of all three of these elements.

A person with a disability or medical impairment can still have decision-making capacity. A diagnosis of Alzheimer's disease or other dementia, mental illness, intellectual or other cognitive disability, or acquired brain injury does not automatically mean a person cannot make their own decisions.

Just because you disagree with the decision does not mean the person who made it lacks decision-making capacity.

When it comes to enduring documents like an Enduring Power of Attorney and Advance Health Directive, the test of capacity is more specific than the general test of capacity.

The principal must demonstrate that they:

• understand the document's purpose and effect
• understand their personal circumstances and the attorney's role
• understand the scope of decisions the attorney can make
• make decisions freely and voluntarily.

For example, they should understand that an EPOA gives the attorney the authority to make decisions on their behalf if they lose capacity.

They also need to have a general understanding of their own financial and personal situation, as well as the responsibilities and powers they are granting to their attorney.

This includes knowing whether the attorney's powers are limited to specific areas such as financial matters, or if they extend to personal and health decisions.

It is critical that the principal is not being pressured, coerced, or unduly influenced by others when creating the document.

The more complex the principal's personal or financial affairs, the greater their understanding needs to be. For example, someone with significant investments or business interests would need to understand how their attorney might manage these assets.

If there's any doubt about the principal's capacity, it's important to pause the process and seek further advice or evidence, such as a medical opinion.

Under section 14 of the Powers of Attorney Act 1998, there are specific capacity requirements for creating an Enduring Power of Attorney.

These requirements ensure the principal fully understands the implications of the document they are signing.

The principal must:

• understand the powers they are granting to the attorney
• understand that the attorney's powers continue even if the principal loses capacity
• understand that they can revoke the EPOA at any time while they have capacity
• understand the attorney's ability to make decisions on their behalf.

For example, they should understand that the attorney could make decisions about selling property, managing investments, or even deciding where the principal lives.

Under section 43 of the Powers of Attorney Act 1998, there are specific capacity requirements for creating an Advance Health Directive (AHD).

These requirements ensure the principal fully understands the medical and legal implications of the document they are signing.

The principal must:

• understand the nature and likely effects of each direction in the AHD
• understand that the directions in the AHD will only operate if they lose capacity
• understand that they can revoke the AHD at any time while they have capacity
• understand the implications of their decisions for their future health care.

For example, if they include a direction to refuse certain life-sustaining treatments, they must understand the potential consequences of that decision.

The AHD is not active while the principal has capacity to make their own health care decisions. It only comes into effect if they are unable to communicate or make decisions due to a medical condition or cognitive impairment.

It is important to ensure the principal is making these decisions freely and voluntarily, without any coercion or undue influence.

If there's any doubt about their understanding or capacity, it's essential to pause the process and seek further advice such as a medical opinion or legal guidance.

The AHD is a powerful document that provides clarity and certainty for medical professionals and loved ones during difficult times. Ensuring the principal fully understands its implications is critical to its validity and effectiveness.

There are several key principles to keep in mind when assessing capacity.

Capacity is not determined by external factors such as someone's appearance, age, or behaviour. For example, someone who appears frail or elderly may still have the capacity to make decisions about their finances or health care.

Similarly, having a disability or a medical diagnosis such as dementia does not automatically mean that a person lacks capacity.

Capacity may be:

• global
• decision-specific
• domain-specific
• time-specific.

Global capacity means the adult is fully capable of making all decisions for themselves, or incapable of making all decisions.

Decision-specific capacity refers to the range and complexity of decisions that an adult can make for themselves. For example, the adult may have the capacity to make simple health care decisions, like having a flu vaccination, but may lack capacity to make more complex health-related decisions such as the need for surgery.

Domain-specific capacity refers to the ability of an adult to make decisions in one domain as opposed to another. For example, the adult may have capacity to make accommodation-specific decisions, but may lack the capacity to make their own health care decisions.

Lastly, capacity may also be time-specific. Capacity is not always permanent. It can be temporary depending on the illness or disability the adult is faced with, and it can fluctuate.

It is important to remember that people can be assisted or supported to make their own decisions. This might include:

• providing information in a way that's easier to understand
• allowing extra time for decision-making
• using interpreters
• using plain language or photos
• writing things down
• using technology
• finding a quiet, comfortable place.

As witnesses, it's your responsibility to ensure the process is fair and inclusive, giving the principal every opportunity to demonstrate their capacity.

Health professionals such as doctors or psychologists can provide valuable insights into a person's capacity, but it's important to understand the limitations of their opinions.

Medical opinions can assist, but are not legally binding.

While a doctor's assessment may provide useful evidence, capacity is ultimately a legal concept. For example, a doctor might state that someone has cognitive impairment, but this alone does not mean the person lacks capacity to make a specific decision.

Cognitive tests may provide insights, but are not definitive. Tests like the Mini-Mental State Examination (MMSE), or other cognitive assessments, can help identify issues with memory or reasoning, but they don't provide a complete picture of someone's ability to make decisions.

Capacity must always be assessed in the context of the specific decision being made.

Health professionals should assess capacity in relation to the particular decision the person is making, and at the time the decision is being made.

For example, someone might have the capacity to decide on their daily care needs, but not on complex financial matters. Similarly, capacity can fluctuate over time due to factors like illness, medication, or stress.

Courts or QCAT make final determinations if capacity is disputed. If there's disagreement about whether someone has capacity, the matter may need to be resolved by the courts or the Queensland Civil and Administrative Tribunal (QCAT). These bodies have the ability to make legally binding decisions about capacity.

As a witness, it's important to consider the broader context, including the individual's ability to understand the specific decision they're making.

If you're unsure, seeking further advice or evidence, such as a medical opinion, can help ensure the process is thorough and fair. However, remember that the final determination of capacity is a legal matter, not a medical one.

As a witness, your most effective tools are observation and listening.

Pay close attention to the principal's responses, body language, and overall demeanour. Whenever possible, assess the principal alone to ensure their responses are not influenced by others.

If you have any doubts about their capacity, it's better to pause the process and seek further advice such as medical opinion or legal guidance.

Your role as a witness is to ensure the process is thorough and transparent.

Build rapport with the principal. Start by introducing yourself and explaining your role as a witness. A friendly and respectful approach can help the principal feel comfortable and open during the process.

For example, you might say:
"I'm here to ensure the document reflects your wishes and that you fully understand what you're signing."

Ask open-ended questions to gauge their understanding.

For example, instead of asking:
"Do you understand this document?"

You could ask:
"Can you explain what this document means to you?"

This approach helps ensure they truly understand the document and its implications.

Once you've assessed capacity, follow these practical tips to help you navigate the process of witnessing enduring documents effectively.

• Allow time to review the document together.
• Go through the document section by section, giving the principal an opportunity to ask questions or clarify anything they don't understand.
• Remember to use open-ended questions to confirm understanding.
• Rule through blank spaces.
• Any blank spaces on the document should be ruled through to prevent unauthorised additions later.
• Ensure the attorney has not accepted the appointment before witnessing.
• Use an accredited interpreter if necessary and complete Form 7 Interpreter Statement.
• A checklist will assist you with prepared questions and note-taking.
• Sign in the appropriate sections, including next to the principal's signature and on the witness certificate.
• If in doubt, pause the process and seek advice.

These steps help maintain the integrity of the process and ensure the document is valid and reflects the principal's true intentions.

To summarise, your role as a witness involves:

• confirming the type of document being signed, whether it's an EPOA, AHD, or other enduring document
• assessing the principal's capacity to ensure they understand the document and its implications
• completing a Form 7 if an interpreter is needed
• ensuring the document is completed correctly with no blank spaces or errors
• signing in the appropriate sections, including next to the principal's signature and on the witness certificate.

Remember, if you have any doubts, do not complete the document.

These steps are critical to ensuring the validity and effectiveness of the document and ensuring you meet the criteria of being an eligible witness.

Now we're moving on to record keeping.

Good record keeping is essential for transparency and accountability.

Document:

• the date, time, and location of the interview
• who was present
• how long the interview lasted.

Record key questions and responses, focusing on the process rather than verbatim details.

For example, note whether the principal demonstrated an understanding of the document and its implications.

Using a checklist can help you stay organised and ensure no steps are missed.

These records can be invaluable if the validity of the document is ever questioned in the future.

If someone questions your role as a witness, remember that the document is valid unless proven otherwise by the courts or the Queensland Civil and Administrative Tribunal (QCAT).

This is why thorough record keeping is so important. Detailed notes about the process, including the principal's responses and your observations, can help address any concerns or disputes that arise later.

Your role as a witness is to ensure the process is transparent and well documented.

Now let's move on to certifying enduring documents such as Enduring Powers of Attorney or Advance Health Directives.

These documents are often used as proof of authority or decision-making capacity, so it's essential that the certification process is thorough and accurate.

To certify an enduring document:

• you must be provided with the original EPOA document
• compare each page of the copy against it to ensure it's a true and complete copy with no alterations
• for multi-page documents, the bottom of each page must be initialled or signed
• if the original document doesn't have numbered pages, the JP should number them, for example, page 1 of 5.

On the first or last page of the copy, you must include a detailed certification statement that states:

"This is to certify this (number of pages) page document, each page of which I have numbered and signed, is a true and complete copy of the original (number of pages) page document which I have cited."

You must then sign, date, and add your official seal and registration number to the document.

This ensures that the entire document is accounted for and properly certified.

So who can certify these documents?

The following individuals are authorised to certify enduring documents:

• a Justice of the Peace
• a Commissioner for Declarations
• a lawyer
• a notary public
• other authorised persons such as trustee companies or stockbrokers.

It's important to follow these steps carefully to ensure the certified copy is valid and acceptable for its intended purpose.

Certifying a copy of a copy is a process used when the original document is unavailable, such as when it has been lost, stolen, or damaged.

To complete this process, the person requesting certification must provide the copy of the EPOA from which the new copy was made.

As the certifier, your role is to compare the new copy against the provided copy to ensure there are no alterations.

Pay close attention to key details such as names, dates, and reference numbers to ensure accuracy.

Once you've verified the copy, you must endorse it with the following certification:

"This is to certify that this is a true and complete copy of a copy. Original document not cited."

Additionally, you must include:

• your seal of office
• registration number
• date
• full name
• signature.

This ensures the certification is valid and meets the required standards.

Remember, the certification must clearly indicate that the original document was not cited, as this is a critical distinction in this process.

As a witness, it's important to remain vigilant for red flags that might indicate the document is being executed under inappropriate circumstances.

Let's break down some of the key warning signs.

Changes in behaviour:

• the principal might seem confused, hesitant, or fearful
• sudden withdrawal or reluctance to engage in the process can also be a red flag.

Signs of abuse:

• physical abuse might include visible bruises, injuries, or signs of restraint
• emotional abuse could manifest as fear, anxiety, or distress
• financial abuse might involve unexplained withdrawals, missing assets, or unpaid bills despite sufficient funds.

Coercion or undue influence:

• a dominant person might speak for the principal
• interrupt frequently
• insist on rushing the process
• the principal may seem unable to express their own wishes freely.

Neglect or lack of care:

• poor hygiene
• malnutrition
• untreated medical conditions.

Inconsistencies in the process:

• the principal seems unaware of the document's purpose
• the document appears rushed or incomplete.

If you notice any of these red flags, it's important to pause the process and address your concerns.

You might suggest the principal seek independent legal advice or consult a trusted professional.

In some cases, it may be necessary to report your concerns to the Office of the Public Guardian or another relevant authority.

Remember, your role as a witness is to ensure the process is fair, transparent, and free from undue influence.

We're only able to investigate allegations of neglect, exploitation, or abuse if:

• the vulnerable adult resides in Queensland
• they do not have capacity to make their own decisions about a matter of concern.

Often, the complaints we receive are about someone appointed as an attorney via an Enduring Power of Attorney document who is not acting in the interests of the person they're supposed to be supporting.

However, we're also able to investigate abuse allegations where there is:

• an informal care arrangement
• or no care arrangement at all.

OPG has clear limitations under legislation.

We cannot investigate suspicions of abuse if:

• the adult has decision-making capacity
• the concern involves paid service providers like residential care facilities.

In these cases, other organisations may be better placed to provide support or advice.

When considering whether to contact OPG, ask yourself:

• Is an attorney under an Enduring Power of Attorney misusing their authority or failing to act, resulting in harm to the adult?
• Is the adult vulnerable to harm or neglect because they lack formal decision-making support, such as a guardian or administrator?

If either of these situations applies, OPG may be able to investigate.

However, if neither is relevant, it's likely that another organisation is more appropriate to assist.

Additionally, OPG does not investigate while a QCAT process is underway. If the tribunal's decision does not resolve the issue, OPG can reassess whether an investigation is required.

If you have concerns, the investigation request form can be found on the OPG website.

If you have any questions, you can phone or email our office. Our central intake and referral officers will respond to your inquiry. They've been trained in the work of the investigations team to assist those contacting us appropriately.

A good request form should include:

• the person's full name, address, and date of birth
• information about the person's lack of cognitive capacity
• observations, medical reports, and information
• a clear and concise outline of the concerns.

Dot points are great.

Remember, this is just the initial intake stage. A member of the investigations team will contact you for more information.

The completed investigations request form is sent to the investigations team for review, and it is determined whether or not the OPG investigations team will undertake the investigation and the parameters of the investigation.

The outcomes of an investigation will depend on the circumstances of the situation and will ultimately be influenced by:

• the level and immediacy of the risk
• the nature and severity of the abuse
• the needs of the adult
• existing service delivery and accommodation options
• ensuring the outcome is the least intrusive option to protect the adult.

When there is an immediate risk to a person's health and welfare, we take prompt action.

Some of the protective actions we can undertake include:

• suspending an attorney's powers
• making urgent applications to QCAT for the appointment of a guardian and/or administrator
• applying for a warrant to remove the vulnerable person from a dangerous situation.

If a Power of Attorney is suspended for personal decisions, the Public Guardian is automatically appointed for a period of up to three months.

If a Power of Attorney is suspended for financial decisions, the Public Trustee is automatically appointed for the same period.

We have developed additional external referral pathways to address situations where the allegations could be resolved through a more timely and less intrusive approach than an investigation, such as mediation or advocacy.

Investigation resources have been focused where they are most needed, allowing us to prioritise matters most likely to require swift protective action.

If you are concerned a person you know is at risk in an emergency:

• phone police on triple zero
• call the Elder Abuse Helpline for free and confidential advice
• contact a legal service such as Caxton Legal Centre
• contact support services such as ADA Australia, Relationships Australia, Lifeline, or DVConnect.

For further information, you can access these resources. The OPG website may also answer any questions you have.

Thank you for taking the time to listen to this presentation on witnessing enduring documents.

Our contact details are listed on the slide, so if you have any further questions, please contact us.