09 EPAs and AHDs

Summary

This chapter covers three important types of documents where a person - the principal - grants power to one or more other persons (attorneys) to act on their behalf under specific circumstances. The Powers of Attorney Act 1998 forms the basis of these powers. The granting of these powers is only valid when made on the following approved forms:

  1. General Power of Attorney (Form 1)

  2. Enduring Power of Attorney Short Form (Form 2)

  3. Enduring Power of Attorney Long Form (Form 3)

  4. Advanced Health Directive (Form 4)

  5. Revocation of General Power of Attorney (Form 5)

  6. Revocation of Enduring Power of Attorney (Form 6)

  7. Interpreter's/Translator's Statement (Form 7)

Advanced health directives for mental health

Enduring Power of Attorney, EPA: a legal agreement whereby the principal gives another person, the attorney, the power to make decisions on their behalf. The term enduring is used to indicate the power of the attorney continues even when the principal still lives but loses decision-making capacity (loses capacity). An EPA allows the principal to appoint:

  • one or more attorneys for personal/health matters, and/or

  • one or more attorneys for financial matters

More details on processing an EPA document ...

Advance Health Directive, AHD: a document where the principal lists instructions about their future health care in the event they are unable to make decisions themselves, and only in this event of losing capacity. The Principal should understand the nature and likely effects of each direction in the AHD. The AHD cannot be signed and witnessed until Section 5 has been completed by a medical practitioner.

Note that an AHD takes precedent over an attorney for health/personal matters appointed in an EPA. In addition an AHD does provide for the principal to appoint an attorney for personal/health matters, typically with specific instructions for health care. Note that an AHD can include instructions for special health matters, such as organ donation or experimental health care, on which a personal/health attorney appointed under an EPA may not make those decisions.

Advanced health directives for mental health: this document allows the principal to consent to future health care and/or appoint an attorney to make decisions for the principal's treatment for mental illness. The principal my also consent to healthcare for health conditions other than the principal's mental health in the same document.

More details on processing an AHD document ...

General Power of Attorney, GPA: a formal agreement where the principal grants an attorney the power to make decisions on their behalf, usually under specific terms for a limited time and for financial matters only. The power of the attorney begins as soon as the document is signed and witnessed. Note that the witness does not need to be a JP. The power ceases at the time nominated by the principal, when the principal revokes the GPA, or when the principal loses capacity. The Form does not make provision for the acceptance of the attorney.

Follow the general procedure for witnessing documents ...

JP responsibilities: A JP has a statutory duty to certify that the Principal appeared to have the capacity necessary to make an EPA/AHD, Powers of Attorney Act 1998, s44(4). The JP must be satisfied that the Principal understands the nature and effect of:

  • the document they are signing

  • the delegation of their decision making powers and

  • directions given about future health care

Interpreter's/Translator's Statement: Form 7 is a statement completed by a person acting as an interpreter or translator for a principal signing an EPA or AHD. The interpreter/translator signs the statement which is then witnessed by the JP, and become an annexure (attachment) to the EPA/AHD witnessed by the same JP. The interpreter/translator must be qualified and registered with the National Accreditation Authority for Translators and Interpreters (NAATI).

Certifying copies of Powers of Attorney/Advanced Health Directive documents

Refer to Certified Copies.

References

Last updated 19 August 2018