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Now, you may already know who Britney Spears is. I didn’t. Wikipedia informed me that: “Britney Jean Spears is an American singer, songwriter, and dancer. She is credited with influencing the revival of teen pop during the late 1990s and early 2000s, for which she is referred to as the ‘Princess of Pop’”. Why am I interested? Because she has recently escaped from the guardianship (called ‘conservatorship’ in America) of her father, who forced her, among other things, to wear an intrauterine device, a form of birth control, and wouldn’t allow her to have a credit card. And, as
it happens, I am under gentle pressure to sign a power of attorney and nominate an enduring guardian to manage my affairs in the eventuality that I become incapable of so doing myself.
Some of you may be in the same boat. I am hale and healthy, and as far as I am aware, free from dementia. You might also describe me as ‘old’, which
I undeniably am.
I am told there may come a time when I am no longer able to control my affairs, particularly in relation to financial matters, which is why I should assign my power of attorney. The arguments for signing an enduring guardianship order are strong. Legal Aid Tasmania has produced a fact sheet that is worth reading (visit www.legalaid.tas.gov.au/factsheets/enduring-guardianship). Carefully.
Among other things, it defines ‘enduring guardianship’ as
a legal document in which you appoint another person to make personal and medical decisions, as distinct from financial decisions, for you. It must be made while you have ‘mental capacity’.
It defines this as the ability to: “understand information given to you, and weigh up the information available to make a decision, and remember that information long enough to be able to make a decision, and communicate the decision to other people”.
Well and good.
Legal Aid distinguishes between an enduring power of attorney and an enduring power of guardianship: “The appointment of an enduring power of attorney formally gives another person, or persons, the authority to manage your legal and financial affairs... The appointment of an enduring guardian gives another person, or persons, the authority to make lifestyle and medical decisions on your behalf.” That is somewhat more intrusive.
Legal Aid goes on to enlarge on the guardian’s powers:
“S/He can: consent to any health care (both medical and dental) that is in your best interests;
Withdraw consent to health care;
Make decisions as to what support services you have;
Sign documents related to your health care or personal care on your behalf;
Decide where you live either permanently or temporarily;
Decide with whom you live;
Decide whether you should work;
Apply restrictions to your visitors if required.”
It is here that I reach a sticking point. I am reluctant to concede these powers, even provisionally, not even to people whom I love and who love me. Both documents have been, and can only be, drawn up by a solicitor, and await my signature. The solicitor is required to submit the enduring guardianship registration to a Service Tasmania shop in person. This is
so it can be registered with the Tasmanian Office of the Recorder of Titles. There is a fee ($74.25). It is then subject to oversight by the Tasmanian Civil and Administrative Tribunal, Guardianship Stream, whose members are “appointed for their knowledge and experience in relevant areas of disability”.
When I came to this point I realised that by nominating a guardian
I was perhaps making an implicit declaration that I was a person with a disability. This brings in its train a whole raft of other considerations. For a start, the tribunal may appoint an administrator, “a person or agency who has been appointed by the Tasmanian Civil and Administrative Tribunal, Guardianship Stream with legal authority to manage the estate or make financial decisions on behalf of an adult who lacks capacity to make such decisions because of
a disability”. It is not clear whether this person is the same as the one whom I had nominated, or not.
Nor is it clear under what circumstances the tribunal would intervene. What is clear is that challenges to the judgement of the tribunal are fraught with expense and difficulty. For further information on this point, read the ABC online article “Tasmanians locked out of decisions of loved ones under outdated guardianship orders”.
So, will I appoint an enduring guardian or someone with power of attorney? As things stand, I think not. The trick will be to hold off for as long as I can, but not so long as to have lost all powers of judgement in the matter.
John Fleming II
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