How Enduring Power of Attorney can go wrong

by Donna Chisholm / 10 April, 2019
alison douglass mark fisher

Dunedin barrister and Law Foundation research fellow Alison Douglass, left, specialises in health and disability law. Photo/Isabella Harrex. Right: Auckland psychogeriatrician Mark Fisher says family members need to be the “squeaky wheel” when a loved one is in care. Photo/Ken Downie.

When it comes to future-proofing your life to prepare for old age, even the best-laid plans can go awry. Donna Chisholm reports.

You’ve given Enduring Power of Attorney (EPA) to someone who can make decisions for you when you no longer can, and signed an advance care plan outlining the sort of treatment you want near the end of your life. What could possibly go wrong? Quite a bit, actually.

Although new rules were introduced in 2017, giving more detailed explanations – and ostensibly more protection – to people appointing an EPA, and to the “attorneys” themselves, legal experts say the changes, although well-intentioned, have made the process more complicated.

“The overriding problem is there is no one who monitors how an EPA operates,” says Dunedin barrister and Law Foundation research fellow Alison Douglass, who specialises in health and disability law. She wants a national register to document EPAs, and a public agency, similar to the UK’s Office of the Public Guardian, set up to advise “attorneys” on what the role entails, supervise how they’re performing, and act quickly on complaints when they arise.

The changes to the Protection of Personal and Property Rights Act introduced new plain-language forms and explanations of the effects of an EPA, and required the documents to be certified by a lawyer or legal executive. But that’s now created a cost barrier – of around $500 or more – when only about half of us get an EPA anyway, and it hasn’t solved the misuse and abuse of the process.

The new forms also give the opportunity for a person to name trusted friends or relatives who the designated attorney has to consult when making decisions, and allows those people access to the person’s financial records. A successor attorney can also be appointed at the same time. Douglass says there’s still plenty of ignorance and misunderstanding around EPAs, however; many don’t realise the person who gives the EPA (the donor) has to be consulted over a significant decision, such as admission into a rest home, and that the EPA has to be activated by a doctor to confirm the person is no longer mentally competent to make that decision. She says if she were organising an EPA, she’d ask her lawyer to explain to the designated attorney exactly what the role entails. She says an advance care plan can be more practically useful than an EPA and aged care providers are becoming more aware of them.

When disputes between family members arise, the only way to challenge decisions the person with EPA is making is through an application to the Family Court, which may not deal with it promptly. 

Read more: Are retirement villages milking the elderly for profit? | Fading into oblivion: A rest home horror story

Janet Anderson-Bidois, the Human Rights Commission’s chief legal adviser. Photo/Ken Downie.

Janet Anderson-Bidois, the Human Rights Commission’s chief legal adviser. Photo/Ken Downie.

“Legally, there are processes to help resolve these matters but they aren’t accessible, either because people don’t know about them or, if they do, they are really expensive and can get tied up in court for a long time,” says the Human Rights Commission’s chief legal adviser Janet Anderson-Bidois. She says it’s important that once someone has signed EPA documentation, they review it regularly and update it when circumstances change – for example, on remarriage. “It’s important to keep your own views of what you want to happen up-to-date, and not think, ‘Well, I did that five years ago.’ Make sure people are aware of what you want.”

People can complain to the Health and Disability Commissioner if they’re unhappy about a loved one’s care in a hospital or rest home, but fewer than 5% of complaints result in a formal investigation. 

Anderson-Bidois, who in a previous role spent 14 years at district health boards dealing with disputes between family members and providers, says it’s a difficult time. “You can think you’re dealing with certainty, but we are talking about people and emotions and a stressful time in people’s lives.”

Wellington barrister Iris Reuvecamp, who’s specialised in health law since 2001, says although many couples give each other EPA, “as you get older, it may not necessarily be the way forward, and you need to consider who to appoint”. People should also discuss what end-of-life care they want. An advance care directive, which is legally binding, needs to be “feasible”.

EPAs go off the rails for a number of reasons, including that the appointed attorney can lack capacity, or their motivations “aren’t pure”. “I do see that reasonably frequently, mainly in the context of money. Or it may be they disagree with what is in the person’s best interests.”

Auckland psychogeriatrician Mark Fisher says family members need to be the “squeaky wheel” when a loved one is in care, but not to the extent that their interactions with providers become hostile. “It’s always good to be asking questions, seeking to have things explained and challenging in the nicest possible way, on occasion.”

People with dementia often have behavioural changes, which can include psychotic symptoms and agitation, and the cause needs to be investigated. Sometimes it’s a physical problem such as constipation or infection. The need for anti-psychotic or sedating medication needs to be regularly reviewed.

“Once things settle down, you should be trying to remove it. All those medications have the potential to make things worse and if you’re prescribing it, you should be aware that people can have an unexpected reaction and can deteriorate and you should be willing to stop the medication.”

He says some rest home providers have introduced programmes to try to reduce the use of anti-psychotics in particular. “Bupa was one that made a big effort to reduce the prescribing to residents. People are aware of the risks and guidelines for use, and alternative ways to manage things, but they’re still quite commonly prescribed.”

He says doctors try to manage people at home for as long as possible, or return them to their homes, but he adds when there is a dispute within the family “it puts clinicians in a tricky situation – families need to be united as much as possible. Most don’t have profound disagreements, although maybe it will become more common with merged or reconstituted families. Usually there is a happy agreement between families and clinicians about what is best for people.”

What to do

  • Have your lawyer draw up an Enduring Power of Attorney (EPA) document, as well as an advance care plan for your care. An EPA allows a person to make decisions for you when you’re no longer competent; an advance directive allows you to specify what treatment you agree to, and what treatment you do not consent to, if you become unwell in the future. The document can provide that the person given EPA consult with other designated individuals before making decisions for you.
  • Ask your lawyer to explain to your prospective holder of EPA what the role entails.
  • Discuss what’s important to you, and what care you want to receive, with family members so they know your wishes.
  • Make sure your EPA and advance directive remain up to date and consistent with your wishes and current situation.

This article was first published in the March 2019 issue of North & South, as part of the feature Fading into oblivion: A rest home horror story.

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