More people seek medical power of attorney

More Australians are including medical power of attorney in their estate planning documents as a result of recent and highly publicised deaths in the United States and Australia of people on life support, according to Australian Executor Trustees (AET).

AET has reported a 50% increase in inquiries about the role of medical power of attorney - also known as enduring guardianship - from people making their wills so far this year.

It follows the recent high profile cases of Terri Schiavo in the United States and more recently, Maria Korp in Australia, both of whom were placed on life support.

Senior Estate Planner with Australian Executor Trustees, Mr Robert Monahan, said more Australians were now considering who will have the right to decide what's best for them if they are rendered unable to make choices about their lifestyle or medical treatment independently.

“In the past year medical power of attorney, or enduring guardianship, has become one of the first services inquired about by people looking into their wills,” he said.

“However, while most people don't think twice about making a will to ensure their assets will be distributed according to their wishes, many still overlook what would happen to them if they were unable to make lifestyle decisions for themselves.

“These considerations needed to be taken into account if an individual's wishes are to be carried out in extraordinary or unforeseen circumstances.

“People who have not appointed an enduring guardian are essentially gambling with their life and their wishes may go unfulfilled if these considerations are not taken into account.

“Many people incorrectly assume that their next of kin will automatically have the right to fulfil this role, however, as we saw with Terri Schiavo in the US, this is not the case.

“Terri Schiavo's husband had to apply for guardianship against strong opposition from her parents. Recently a public guardian was appointed to administer these duties on Maria Korp's behalf because she had not appointed an enduring guardian.

“In Ms Schiavo's case, it took a 15 year court battle to resolve the issue of whether to remove her life support. The stress and heartache for those involved could have been lessened had an enduring guardian been nominated from the outset.”

Mr Monahan said an enduring guardian was appointed to make personal or lifestyle decisions on behalf of a person if or when they were no longer capable of doing this themselves. An enduring guardian cannot act for you if you have the capacity to make your own lifestyle decisions.

“This could be as a result of an accident, sickness or loss of mental capacity for some reason,” he said. “You can choose which decisions an enduring guardian can make on your behalf and can also provide directions to the guardian about how to carry out these functions.

“This eliminates any need for family and loved ones to second-guess your wishes, particularly if there is any chance that they may have differing views on the best way forward.

“For example, the decisions an enduring guardian could make may include where you will live, which doctor you see and the type of medical treatment you receive. You may also require that your guardian consult with family members before making certain decisions.

“An attorney appointed under a Power of Attorney can only make financial decisions. An attorney cannot make lifestyle decisions. Neither an attorney nor a guardian can make or change your will or vote in an election for you.

“There are strict accountability measures in place to ensure no liberties can be taken and an enduring guardian must act in your best interests within the law.”

Mr Monahan emphasised that in situations where an enduring guardian had not been appointed the chances were that a third party with no personal knowledge of, or connection with, the person in question would be given this responsibility.

“It is common for people to appoint their spouse as enduring guardian, however if for some reason the spouse also became physically or mentally incapacitated, the nominated guardian may be unable to act” he said.

“To safeguard against this, it is possible to appoint an alternate guardian such as a relative or trusted friend. Anyone can be an enduring guardian provided they are over 18-years-old and in a sound state of mind.

“It is best to arrange an enduring guardianship through a professional estate planner to ensure you are fully aware of your options and understand how this role will take effect.”