Powers of Attorney – Guardianship Issues

Powers of Attorney – Guardianship Issues

MB+M is always looking to partner with other professionals who have the expertise to ensure we are meeting our clients’ needs.  Irongroup is one of those that we work with, along with other legal firms to ensure we match the client need with the expertise required.  Below is their recent article outlining some great scenarios that you might find yourself with guardianship.  If you are interested in finding out more, please contact your adviser at MB+M who can tell you more.

Two Minute Scenarios

There seems to be a misconception around the need for different types of powers of attorney. We have had recent experiences with people who have unfortunately been caught out as most care facilities are now making it mandatory to have a Guardianship Power of Attorney (or the updated Personal Power of Attorney in Vic) before they will accept new residents.

Scenario One… Robert and his Mum

Scenario: Robert’s Mum had her powers of attorney done a couple of years ago. For some reason she was told that she only needed the financial and medical ones prepared, and didn’t need to worry about the guardianship. 

What’s the issue? Robert was looking to have his Mum move into an aged care facility. They told him they would not accept her without a Guardianship Power of Attorney (or as they are in Victoria, the updated Personal Power of Attorney). Robert’s Mum no longer has capacity so he now needs to go to VCAT (or the equivalent tribunal in other states) to get an order.

Solution: To avoid this problem, all Powers of Attorney are needed. Depending on the state this will be Financial, Personal or Guardianship, and Medical.

Scenario Two… Sarah’s Dad

Scenario: Sarah’s Dad had fallen off a ladder, breaking numerous bones. He needed rehabilitation and had to go into respite care for a month. Sarah’s Dad also did not have a Guardianship Power of Attorney (or Personal Power of Attorney).

What’s the issue? Sarah found the respite care facility would not accept her Dad without the Guardianship Power of Attorney. Fortunately, he still had capacity so she could get one done but had the pressure of getting her Dad an appointment with a solicitor plus getting it done quickly as the hospital wanted to discharge him in the next day or two.

Solution: As above, it is prudent to have all Powers of Attorney prepared so not only do you get to choose who that person will be, it avoids the complication of your family having to approach the local state authority to appoint one.

Scenario Three…  Colin and his sisters

Colin’s Mum did not have any Powers of Attorney so he applied to the local state tribunal who appointed him as her Financial, Personal (Guardianship) and Medical Power of Attorney. 

What’s the issue? Colin’s sisters were quite upset. They had decided on what they thought was the most appropriate aged care facility for their Mum but Colin did not agree – he thought it was too expensive. He had the final say.

Solution: If you want to choose the person best placed to make decisions on your behalf, make sure you have all Powers of Attorney in place. Why leave it up to the state when you can have a choice? 

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