The inside word on Enduring Power of Guardianship

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We’re grateful to have an Advocate with a background of working with the Office of the Public Advocate. We chatted to Tammy to gain an insight into pros and cons of older people having an Enduring Power of Guardianship (EPG) in place.

Tammy is a Social Worker by qualification, and has also worked in Community Mental Health, with children at risk of homelessness, in local government, with the Redress WA scheme, NDIS and the Commonwealth CareLink and Respite Centre.

“When I came to work at Advocare, I was surprised at how often callers ask questions about ‘Enduring Power of Attorney’ (EPA) and ‘Enduring Power of Guardianship’ (EPG) arrangements – often weekly. It’s clearly an area where older people and their families still need information to understand them and the implications of each.” said Tammy.

“In terms of calls to the WA Elder Abuse Helpline, we get a lot of calls about people misusing both arrangements and wanting to know what to do about that.”

This article focuses on the ‘Enduring Power of Guardianship’ (EPG) agreement between an older person and a nominated person, which is:

“…a legal document that authorises a person of your choice to make important personal, lifestyle and treatment decisions on your behalf, should you ever become incapable of making such decisions yourself.” (Office of the Public Advocate, August 2023).

Tammy talks to older people who are in difficult situations and often don’t know how they ended up there. As an Advocate she needs to get to the bottom of it, so she can figure out what information will best suit them.

Sometimes when advocates are asking probing questions, quite often there’s not a legal arrangement in place meaning we might be accepting consent from the older person’s next of kin – which isn’t really sufficient. Or it might be that this person is speaking for their parent even when the parent has capacity, so we should be speaking to them directly. As an Advocate, we need to know we’re speaking to the right person.

Advocate Tammy

Hearing ageism rather than the facts

Our Advocate says ageism still comes into play when adult children call on behalf of their parent.
“I have to ask the son or daughter, ‘Does the person still have capacity to make decisions’ or separate that into ‘Can they make lifestyle decisions or can they make financial decisions?’

And some of the responses are ‘Well, Mum’s 92…’ I’ll note that but ask how that impacts their cognition of what’s going on – if at all? Just because a person’s 92 doesn’t mean they can’t make their own decisions. Or I hear ‘Dad’s in a wheelchair and in an aged care facility.’ But if Dad is still making his own decisions, then he still has capacity to guide his care.

I think family members are probably coming from a good place most of the time. They might assume because a person’s a certain age or that they’re in a care facility, that they shouldn’t have control over their own life anymore. They may believe it’s acceptable for them to stand in their shoes and start making those decisions, even though there’s no formal arrangement.”

Guardian expectations in an EPG arrangement

What should someone be prepared to do if they’re nominated as a guardian in an older person’s Enduring Power of Guardianship (EPG) arrangement?

The person appointed must ensure they’re always acting in the best interest of the older person involved. Ideally, this would be a family member or friend if possible, but it can be a little more complicated when there’s family dynamics at play.

Tammy’s tips for nominating a guardian:

  • Do you trust this person? This is the biggest thing.
  • Identify any conflict of interest or minimise them as much as possible before you choose. Make sure you have a stable relationship with the person and know them well.
  • Can they communicate with other important parties in your life? Often conflict goes to the Office of the Public Advocate because one family member is being appointed and they casn’t communicate with everyone else.
  • Will they be ready to consult with other important people and keep them updated – even if they don’t get on with other people in the family to talk about major decisions, like medical ones?
  • Remember to get them to sign the document. Both parties must sign for it to be a legitimate document.

Not happy – can it be cancelled?

Remember an EPG can be revoked by the older person at any time as long as they are deemed to still have capacity to do so. Unlike a Will, there is no centralised place where you can ‘bank’ a signed EPG document.

Ordinarily, copies of the signed EPG are provided to other professionals and organisations that might need to know what’s happening in the older person’s life e.g., their GP, My Aged Care, home care service provider, physiotherapist, and so on.

Tammy shares, “All you need to do is write a letter stating that you’ve revoked the document, attach the original document and provide it to the person you’ve originally appointed and to anyone else who might have been provided with a copy,  like a GP or service provider. It’s pretty simple, but it helps to compile a ready list of where the old one went to ahead of time for future planning.”

Changing an EPG does become more complicated when the older person has lost capacity, as they no longer legally revoke it. The older person’s EPG may need to go through an application process to the State Administrative Tribunal to consider whether it can be revoked or if appointments need to be made. It can be a lengthy and stressful process for people, which is why it can be a good idea to make an EPG as part of future planning.

Planning for getting older is crucial to ensure your wishes are met and carried out the way you would prefer.

If you have concerns about your current EPG, contact Advocare on 1800 655 566.
For more information on EPGs in general, contact the Office of the Public Advocate on 1300 858 455 or visit their website.