Hello everyone and welcome to our webinar, What is an attorney and understanding your responsibilities. We have a great lineup for you today. So, thank you for joining us and giving us your time. Okay, so I'd like to officially begin by acknowledging the Traditional Custodians of the lands across Queensland where we are all gathered today. We pay our respects to elders past, present, and emerging, extend that respect to any Aboriginal and Torres Strait Islander guests online today and honor the First Nations people we support.
Hello and welcome. My name is Rachel Meehan. I'm the Senior Community Education and Engagement
Officer at the Office of the Public Guardian, also known as OPG. Joining me today are some very
special guests. Dr. Ann-Louise McCawley, Community Engagement and Education Leader at Caxton
Community Legal Center, and Nikki Duke, Principal Investigations Officer with OPG's Investigations
team. By the end of this session, you will gain a clearer understanding from Ann-Louise and Nikki
on what is an enduring power of attorney, the attorney's role and responsibilities and limits,
how to avoid some common mistakes, and where to go for extra information and help. We'll
conclude today's session by answering any questions you might still have.
So now I'm going to hand over to Ann-Louise to explain more about the role of the attorney in detail. Welcome Ann-Louise and thank you for joining us. Thank you very much Rachel and
thanks for this collaboration education between OPG and Caxton Community Legal Center. In case
participants don't know very briefly, Caxton is a not-for-profit charitable community legal center.
We've been servicing Queensland for the last 50 years by providing free legal and social support
services for our government funded programs. I'm attached to the senior's legal and support service
and this education is really relevant to our clients as we often come across attorneys who are
not clear about their roles, responsibilities and limitations. So, let's start. All Queenslanders
can plan for a future time when they're not able to make decisions for themselves, but we still but
they still want their wishes to be respected and followed by others. We call this future planning.
Today, we're focusing on the enduring power of attorney document, but I will briefly acknowledge
other available documents. Anyone over the age of 18 who has decision-making capacity and resides
in Queensland is eligible to complete enduring documents and a will. The term enduring here
means that the documents can be actioned and used even when the principal no longer has capacity
to make decisions. only enduring documents. So, are enduring powers of attorney and the advanced
health directive and so they are actionable when the principal is alive uh and able to make
decisions unlike the general power of attorney. An enduring power of attorney allows you to appoint
someone to make personal health and financial decisions on your behalf if you lose capacity.
An advanced health directive relates only to health decision making such as medical treatment and care. Very important but not our focus today. And a will is a critical document that applies
after your death. A couple of terms you'll hear me use are principle. So that means the person
who creates the enduring power of attorney or the advanced health directive and appoints one or more attorneys to act on their behalf. attorney. A person appointed under an enduring
power of attorney to make decisions on behalf of the principal. Does not have to be a lawyer. That
could be an attorney under an enduring power of attorney is often somebody personally chosen to
make decisions on behalf of the principal. someone who will know the principal's wishes
and follow them, is trusted, and really follows what the principal wants, not what the attorney
thinks is important. And then you've got the terms powers. So that really means that when
you agree to act as someone's attorney, you take on legal duties and have legal power under
the powers of attorney Act, Queensland. We'll unpack this as we go along. Next slide, please.
So, who can be an attorney? The attorney's role is to manage the personal, financial,
and health matters depending on what the principal has authorized them to do. If you're unsure about
the role after this session, you may choose to seek legal advice before undertaking the role
or else even read more around about the role from the explanatory guide that is up on the Department
of Justice website for attorneys. Who can be an attorney? Well, not everyone can be an attorney.
There are specific criteria that make someone eligible to be an attorney. You must be an adult,
so over 18 years of age. and capable of making decisions yourself. You also cannot
be the principal's paid carer or have been in the last three years. Receiving Centerlink benefits,
for example, as a family member is okay, but not working and receiving money as a carer for
that person. Their doctor or health provider or someone who provides residential services to them
where they live cannot be an attorney. And if you're appointed to manage financial matters,
you cannot be bankrupt or taking advantage of bankruptcy laws. These rules are in
place to ensure that the attorney is independent with no other conflicts of interest and able to act in line with the principles, views, wishes, and preferences.
Next slide. Even before you agree to be an attorney, you will want to consider the key
points in these slides. And there are quite a number of them. Nikki from the Office of Public Guardian will focus on many of them later, but I'm going to address the two key points that
are bolded on that text on that slide right now. Number one, do you know how to provide
appropriate support? Can you act in a supportive or supporting rather than substituting way?
That is, can you do what the principal wants based on their wishes, views, and preferences
rather than your own personal values or what you believe is best. If you're not sure how to support
decision making, there's a previous webinar in this series that you'll want to watch. But
ultimately, your role is to follow the wishes and preferences of the principal. Essentially,
what would mom have wanted if mom had the capacity to make this decision now? And that leads to the second essential bolded point. To follow the wishes and preferences,
you need to have a conversation with the principal about what they may want. An important practice tip, but often overlooked. A document is one thing, but the actual discussion
about what they may want is absolutely vital. And then we've also got the final point that is
not necessarily on the slide, but is just a key practice point. Get a copy of the enduring power
of attorney and read it. It can help guide your actions. The principal may have added terms and
instructions to the enduring power of attorney and these must be followed. Do you accept the rules and restrictions that the principal has set and do you know what they are? Next slide.
Some common instructions about how you might make a decision on behalf of the principal is also held
within the document which is why it's really important to focus on that. Common appointments
are jointly. All attorneys must agree on every decision that is made before it's made. This means
you need to make decisions unanimous unanimously with other attorneys such as signing documents
together to put a decision into action. A maximum of four joint attorneys can be appointed for the
same matter whether or not they be personal, health or financial. Severally any of the
attorneys can make a decision on their own without needing agreement from others. So just think about
the concept and the term several or severed by a majority. If there are more than two attorneys,
more than half must agree before a decision can be made. And then there's opportunities for other
ways that attorneys can be set up as well. Uh and there's more on guides and the actual document
guidelines itself. A key practice tip though is that if a principal has appointed more than one
attorney, make sure that you consult with other attorneys regularly to avoid miscommunication and
reduce conflict. And if there are no instructions provided, you must act jointly. Next, please. Once
you sign the document, it's really important to know where the principal has stored it. Uh there's
no central registry in Queensland, so check in with the principal to ensure that you know where to find it uh and to access it very quickly as sometimes decisions need to be made in that way.
You will need certified copies to act on their behalf. A certified copy is a copy of the original
enduring power of attorney and can be made by um the certification can be done by people such as
uh lawyers, notary public, justice of the peace, commissioners of declaration are the common
ones and the principal may also have stored it digitally with Queensland Health by uploading via
the Office of Advanced Care Planning or it could be on their My Health record or even the legal
firms that drafted it may have a secure storage facility. So, making sure you know wherever it is
stored and also that that storage document is the most upto-date one. Other options you may
identify are mom may have put it on the kitchen fridge in a plastic sleeve. Uh sometimes they do
that because ambulance officers may check there. But as an attorney, you will need to present that
certified copy of the enduring power of attorney in various situations. Uh and you will often be
prompted by those institutions. And you can see on the slide that we have quite a number of institutions on the right there. Um that will probably ask you directly if you want to
uh act on behalf of somebody else. So banks, financial institutions are one of them. Real
estate transactions of course make sense. Government agencies such as Centerlink, Australian
Taxation Office, uh health care providers will ask about any enduring powers of attorney that
are available and appointments in there and aged care facilities uh are often requiring them now
prior to somebody being admitted to aged care and then any of the others. So, good to know uh that
you may be asked and that you have a certified copy ready to go. Next slide, please. So,
this slide is the perfect example of why you need to read the enduring power of attorney document.
The types of decisions you can make depend on what the principal has authorized in the enduring
power of attorney document. It's important to understand the scope of your authority before
making decisions in relation to personal and health decisions. You can only make decisions for
the principal if they do not have capacity to make that health or personal decision required. Now you
can see the types of decisions outlined on the slides. Uh but key examples around personal are
where the person wants to live, what they want to eat, who they want to see, and some medical
anything to do with medical treatment or care may also be included in the health aspects. A good tip
too is to also check with the principal whether or not they've completed an advanced health directive. Uh if you're making health decisions as advanced health instructions may take priority.
You will see that I focused upon the decision that needs to be made now in my comments. If
no decision is needed, then your role is not necessary and not actioned. If the person has
capacity to make the decision themselves, no action again. If you can support the principal
to make any of these decisions now, then do so rather than going directly to substitute decision-
making. In relation to financial matters, it can be quite different on the actual document.
It may indicate that you're making decisions around financial matters immediately or it may
be that the principal specified a condition to the enduring power of attorney document.
Remember, no matter what though, that before actually using and actioning any behaviors or
requirements of the enduring power of attorney, you must have signed the attorney's acceptance
in section five to begin acting. And you should notify relevant parties when the enduring power of
attorney is activated and if decisions are needing needed whilst the principal lacks capacity.
Next slide, please. As an attorney, you'll need to consider uh whether and when the principal needs
more assistance with either personal, health, or financial. This slide has quite a lot of
information on there that if you want to do a deeper dive into how you may assess capacity,
I refer you to the capacity assessment guidelines on the DOJ website, Department of Justice website.
However, some key practice tips for now. Capacity of a decision-making is defined by legislation and so is a legal term, not a medical one. It's based in the legislation,
the guardianship and administration act as one example. Health professionals such as doctors
or psychologists can provide helpful insights, but their opinions have limitations. Everyone is
presumed to have capacity to make decisions unless proven otherwise. Capacity depends on context and
support and the type of decision that's needed. Now, the principal deemed to lack capacity for
health decisions may still uh retain ability for personal and health decisions, for example,
and capac capacity may fluctuate and may be regained. An acute episode of mental illness
may resolve and the attorney can stand down. When thinking about capacity from a legal perspective,
it's around considering their understanding of the decision, whether or not they're making the
decision freely and voluntarily, and can they communicate the decision in some way. Just
you disagreeing with their decision doesn't mean that they lack capacity either. And a
diagnosis like dementia or psychosis doesn't automatically mean a person lacks capacity.
So support using plain language and visual aids can also help principles make decisions sometimes.
Next slide please. And finally I think from my perspective there are situations where your powers
may be automatically revol revoked or cancelled if you're acting as an attorney or the enduring
power of attorney itself is no longer valid. Um you can see here quite a number of um examples
and some of them we've already uh addressed uh for example on the right. However, the ones that
commonly get people confused uh is probably around the actions of the principal when a new document
is created. So if a new document's created and you are no longer appointed as the attorney then you
need to stand down. If the at if the principal dies then the enduring power of attorney role
dies with the person. If the uh and then there are other examples around marriage civil partnership
the court or the tribunal may cancel the injuring power of attorney and we've already spoken around
about regaining decision-making capacity. The other thing I suppose is around the actions
of attorneys and this gets confused is if the attorney dies that would make sense that their
action activity dies with them. Um however with resignations you must give notice to
the principal if you wish to resign but at the same time you must have capacity to do so. And
if the principal no longer has capacity to accept that resignation, then you have to apply to QCAT.
Otherwise, I think um they're the most important things and you can read about the
rest and keep these as a node to memoir as well for you into the future. Hand back to Rachel.
Thank you and Louise for that wealth of information on the role of the attorney. Uh speaking from um personal experience, I'm an attorney for a loved one who does have dementia.
And uh yes, it does create a bit of extra work at times, but knowing that I'm enabling and
empowering them to be still involved in decisions that impacts on their lives is really fulfilling
and rewarding. So, thanks Ann Louise. It's really informative. All right. So, now we're going to
talk about uh what you can and can't do as an attorney and some ways to make uh some ways to
avoid common mistakes. So, we're going to hand over to Nikki Juke now from the investigations unit at OPG. Welcome Nikki. Thank you. Hi. So, I'm Nikki Juke and I work in the investigations
team at Office of the Public Guardian where we look into concerns relating to decision making
for vulnerable adults who lack capacity. So, it's important that you understand your obligations and
responsibilities as an attorney, but also to be clear on what you're not permitted to do.
Obligations or legal duties are mandatory legal requirements under the guardianship
and administration act 2000 and the powers of attorney act 1998. Responsibilities or your task
and actions are the specific practical actions an attorney performs to carry out their duties
such as paying bills, lodging tax returns, selling a house or choosing a nursing home. Essentially,
obligations are the legal how acting honestly and avoiding conflicts while responsibilities
are the functional what to managing bank accounts and making health choices. The enduring power of
attorney explanatory guide includes an attorney's obligations and responsibilities in detail.
As an attorney, you must follow specific legal requirements. These include applying the general
principles and healthcare principles if those apply, acting honestly and diligently, consulting
with the principal's other attorneys, protecting the principal's confidential information,
and following the rules for gifts and donations. conflict transactions, supporting the principal's
dependence, investments, keeping records, and keeping property separate. However, there are
limits to your powers as an attorney. You can't make decisions the principal hasn't authorized
in the EPOA. You can't make decisions outside of the terms and instructions of the document,
nor can you use a principal's money or property for your own benefit. You can't make or change
a principal's will or vote on behalf of the principal. You can't make decisions about the
principal's children or other dependents or act in ways that are illegal or unethical. Not consider
the principal's views, wishes, and preferences unless it's impossible to act on them or doing so
would cause harm. For example, wanting to remain at home when it isn't a safe environment. You
can't make decisions after the principal has died. your authority ends at that point or delegate your
responsibilities to someone else. If you're unsure about your role or responsibilities, you should
check the EPOA document or seek independent legal advice. Next slide, please. So, let's
look at some common mistakes that attorneys make. So, mixing funds, attorneys mix in their own money
with the principles in a single bank account. This includes using the principal's money to reimburse themselves without proper justification and failing to maintain accurate records. An
example is an attorney who chose to stop working to care for the principal and then began paying
themselves from the principal's funds to replace their income. While the intention may have been to
support the caring role, this isn't acceptable as attorneys must not financially benefit from
their position. conflict transactions and misuse of assets. So, attorneys engaging in gifting money
or selling the principal's property to themselves below market value. Misuse of the principal's
assets, such as their car, is also a recurring issue. An example of a conflict transaction
would be where a principal has historically paid for a grandchild's private education. If the EPOA permits conflict transactions, it may be reasonable for those payments to continue.
However, a QCA application should still be made to ensure transparency and proper authority. In contrast, using the principal's funds for personal expenses such as attorney
paying for their own Netflix subscription, is not appropriate and would be a misuse of funds. Misunderstanding capacity and powers. Attorneys lacking understanding of capacity,
including where the powers begin and end or not following instructions. Attorneys failing to
adhere to the principal's instructions as outlined in the EPA document. They sometimes fail to
consider the principal's views and wishes. Lack of awareness of responsibilities. So attorneys being
unaware of their broader responsibilities such as managing NDIS funding on behalf of the principal
not keeping receipts and records. So keeping receipts and records provides accountability
and accuracy in dealings and transactions. An example of where recordkeeping can fall
short involve regular ATM withdrawals and online transactions from a principal's account despite
the principal not having the ability to access them themselves. While the attorney appeared to
be acting with good intent and explained the funds were used for the principal's day-to-day needs, they were unable to provide receipts or records to support this. Attorneys are required to keep clear
and accurate records so they can demonstrate that all spending is in the principal's best interests.
Without this, it can create uncertainty and a lack of transparency even where the intentions are
genuine. Dispute resolution and decision- making. Finding out how to resolve disputes regarding
an attorney's decisions, how attorneys should make decisions, and how they should communicate these decisions to the principal's friends and family. or not seeking support for when needed,
such as for medical decisions. Another common challenge is not seeking the right level of support. Often this comes from a place of love and commitment. For example, wanting to honor a
promise to care for someone at home. However, without exploring available options such as restbite care or in home support, attorneys can become overwhelmed, particularly as their own
health begins to decline. This can unintentionally impact both their well-being and the quality of
care provided. Accessing the right supports and ensuring appropriate services and funding are in
place helps create a more sustainable and positive outcome for everyone involved. Next slide,
please. So, what happens if you don't follow the rules? An attorney has important legal duties and
obligations that they must comply with. And the rules about certain financial matters are
especially complicated. It's strongly recommended that both a principal and attorney get independent
legal and financial advice before being appointed and acting on complex financial decisions. There
are consequences if you fail to comply with your duties as an attorney. You could be removed as an
attorney. So QCAT can remove if you don't meet your obligations or face criminal liability.
It can be considered a criminal offense to act dishonestly or without reasonable care. Need to
pay compensation. QCAT or the Supreme Court can order you to compensate the principal or their
estate for any losses caused by your actions. Need to account for profits. You may be required
to return any profits gained from failing to meet your obligations or have your power suspended. OPG
through our investigations process has legal authority to sus suspend powers in specific
circumstances. OPG will then formally advise QCAT to review it and make a final determination. Need
to produce records and documentation. QCAP or the Supreme Court can make additional orders such
as requiring you to produce records or audited accounts. Many attorneys don't realize the level
of responsibility involved until they're in the role. Reaching out of guidance or support early can make a significant difference. QCAT and the OPG both provide useful educational material on
their websites where many common questions are answered. Next slide, please. Now, to wrap up,
here's some practical tips for being an attorney. To be an effective attorney, it's important to
understand the terms of the EPOA document and your responsibilities. Where possible,
use supported decision-m to involve the principal in decisions and follow good practices to ensure
their wishes are honored. If you're unsure about your role and responsibilities, seek legal advice
to ensure you're meeting your obligations. By doing so, you can safeguard their money and
property. Prioritize their well-being and uphold their rights. Communicate early to understand the
principal's wishes. Talk to the principal about their wishes and preferences before they lose decision-making capacity. Stay organized. Keep the EPA document, the principal's financial records,
and other important papers in a secure and easily accessible place. Use a method that works for you.
That could be a diary or spreadsheet to track decisions and transactions. Be transparent.
Share information with the principal if possible, other attorneys if there are multiple, and the
nominated person if there is one, and seek help if needed. For complex decisions, consult a lawyer,
financial adviser, or health care professional. Professional advice ensures that you've taken the
right steps to make an informed decision. The cost of this advice is generally a legitimate expense
payable from the principal's funds. And know your limits. If you feel you can't fulfill your role,
let the principal or other attorneys, nominated person, or a relevant authority know. Take time
to reflect and review the document after you agree to be an attorney. and sign the document.
Set a reminder to review the document and attorney resources on an annual basis. Reflect on how well
the arrangements are working and make changes if necessary through the right avenues such as QCAT or the Supreme Court. Most issues we see aren't intentional. They often come from
a lack of understanding. There's lots of support and guidance to assist you in your role. I'm now
going to hand back to Rachel. So I just want to reiterate here that there are many organizations
where you can go for support and more information. This is just some of them. I think the main thing
to highlight on this slide is that to access the enduring documents and the explanatory guides and
other information that we've referred to today, visit the Queensland government publications site
and we'll include the link in the posteinar email for you. If you'd like to hear more webinars such
as this from OPG and stay up to date on our news and upcoming events, please subscribe, follow us
on LinkedIn and YouTube as well. We'll be putting all the recordings uh of our webinars and we've
got some videos and recorded presentations on YouTube. So, make sure you uh get there and have a look. And lastly, thank you so much to all of you for joining and engaging with us today.
We do hope you found this information session invaluable and sorry valuable and informative.
We've got a link currently on the slide there that takes you to a feedback survey. We would very much
like to hear from you uh which will help us with future education sessions. And lastly,
but certainly not least, I'd like to extend a very special thank you to our guests, Dr. Ann
Louise McCauley from Caxton. It's been an absolute joy working with you and Louise and collaborating with you on this webinar. And thank you also to Nikki Juke from our investigations team
for show sharing you both of you for sharing your knowledge and your experiences with us today. So
that will be it for us today. Thank you very much again for your time and we wish you a very lovely
