A person may, due to illness or an accident, lose the ability to make decisions. Loss of mental capacity can also mean the inability to communicate personal wishes to anyone else. Mental incapacity is defined in the Guardianship and Administration Act 1993 as ‘the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs, as a result of (a) any damage to, or illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind;
or (b) any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever.’ What happens when someone loses mental capacity?When this occurs, a family member is usually able to step in and make those decisions on an informal basis. Many people, however, wish to plan ahead. To ensure that their wishes are followed as closely as possible in the future, should they lose capacity and there are no informal arrangements, they legally appoint a person or persons to make their personal, medical or financial decisions. These legal arrangements are called Advance Directives (also referred to as ‘living wills’) and must be made before mental capacity is lost. What is an Enduring Power of Attorney?This document allows a person to appoint a friend, family member or another trusted person to make financial decisions, including property transactions. How do I arrange one?This may be done through a private lawyer, by contacting the Legal Services Commission, the Public Trustee, Connecting Over 50s Throughout Australia (COTA) or by purchasing Enduring Power of Attorney: a Do-it-Yourself Kit. The kits are obtainable from the Legal Services Commission or Service SA. What is an Enduring Power of Guardianship?This document allows a person to appoint a friend, family member or another trusted person to make important personal decisions such as accommodation, holidays, relationships and medical or dental treatment, should mental competence be lost in the future. If an Enduring Power of Guardianship has not been made and a person is unable to make decisions, the Guardianship Board may appoint a guardian to make decisions about that person’s welfare. This guardian may be a relative or the Public Advocate. How do I arrange one?This may be done through a private lawyer, by contacting the Legal Services Commission, the Public Trustee, COTA or by purchasing Enduring Power of Guardianship: a Do-it-Yourself Kit. The kits are obtainable from the Legal Services Commission or Service SA. What is a Medical Power of Attorney?A medical agent can be appointed under a Medical Power of Attorney to make decisions about medical treatment for a person who becomes unable to make these decisions. If there is an Enduring Power of Guardianship already in place, there is no need to obtain a Medical Power of Attorney. How do I arrange one?Information and forms for Medical Powers of Attorney can be obtained from the State Government’s Department of Health or the Palliative Care Council of SA
If a person has both an enduring guardian and a medical agent, the medical agent takes precedence in relation to medical decisions. What is an Anticipatory Direction?This document provides a way to record a person’s wishes and directions about end of life decisions, such as a wish to decline medical treatment without involving another person. The ‘direction’ enables people to indicate in writing (should they enter into the final phase of a terminal illness, exist in a persistent vegetative state or be totally incapable of making decisions for themselves) that they do not want any extraordinary measures taken to keep their bodies alive. These wishes must be acted upon by anyone providing care. How do I arrange one?Copies of the Consent to Medical Treatment and Palliative Care Act 1995 and the Schedule 1 and Schedule 2 forms are available from the Department of Health or the Office of the Public Advocate. For any of these advance directives to be legally valid, the person making it must be mentally competent to understand the nature and intention of the document. There must be no pressure or influence on a person to complete or sign such a document. Written confirmation of the person’s mental incapacity can be provided by a medical practitioner and may be required for an Enduring Power of Attorney, an Enduring Power of Guardianship or Medical Power of Attorney to be used by the appointee. What is the role of the Guardianship Board?The Guardianship Board is a court-like tribunal that can make an order for guardianship and/or administration. Guardianship relates to lifestyle and medical treatment decisions and administration relates to financial and legal matters. An application to the Guardianship Board should only be made as a last resort when all other options have been considered.
If there are Enduring Powers of Attorney and Guardianship in place and there are no concerns about the decisions being made, it is usually unnecessary to make an application to the Guardianship Board. If there are no Enduring Powers of Attorney and Guardianship and the person is coping in the community, being adequately cared for by family or friends and there is no conflict between the parties, there is also no need to apply for guardianship or administration. However, informal arrangements might become difficult if the person with a mental incapacity strongly objects to decisions being made on their behalf or if there is conflict or concern over decisions being made or if major financial decisions need to be made. The application should contain relevant and accurate information that supports and demonstrates the need for intervention and also shows how other less restrictive options have been tested and why legal protective orders are required. Useful contacts:The Office of the Public Advocate
Provides information about the Guardianship and Administration Act 1993, the Mental Health Act 2009, the operation of these Acts, and related issues.
Guardianship Board
Level 8, 85 North East Rd, Collinswood SA 5081 Tel. 8368 5600, 1800 800 501(free call country callers)
Public Trustee
Provides assistance to prepare legal documents such as wills and power of attorney for a fee.
COTA Seniors Voice
A solicitor provides free advice on general legal matters and takes instructions for simple wills and powers of attorney. These appointments are of 20 minutes’ duration. | 
