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Mild memory loss and slower thinking can be a normal part of ageing, however, most older people remain capable of making their own decisions, including managing their own finances and other affairs, throughout life. Sometimes, older people simply need more time to complete tasks or to ask for help from time to time.
Some people with illnesses like dementia may eventually lose the capacity to manage their own affairs. In these cases an older person may need someone else to be appointed to make certain decisions for them. However, it is important to be aware that the claim that an older person ‘has dementia’ or has ‘lost decision-making capacity’ is often used as an excuse to hide bullying or abuse.
The law says that we have the capacity to make our own decisions unless proven otherwise. This is called having ‘capacity’ or ‘competence’.
You should assume someone has decision making capacity unless proven otherwise. Proof may include a formal assessment such as a cognitive or neuropsychology assessment.
Lack of capacity is not necessarily an indicator of dementia. A person’s capacity can be temporarily affected by stress, anxiety, medication, illness, infection or injury, and then regained after a temporary illness or stressful situation passes. Or it can progressively deteriorate.
Decision making capacity can vary depending on the issue being decided. For example, it may be difficult for a person to understand complex banking arrangements, but they may be quite capable of deciding things such as medical treatment or where they want to live.
If there is any question about someone’s capacity to make decisions, discuss getting an assessment with the older person themselves or contact the Office of the Public Advocate for further advice.
An assessment for capacity needs to be undertaken by a trained medical professional. The best place to start is with a GP, a Cognitive Dementia and Memory Service (CDAMS) or an Aged Care Assessment Service (ACAS) through My Aged Care.
If the person refuses to be assessed and there is concern for their safety, contact Office of the Public Advocate for advice.
Interagency Guideline for Addressing Violence, Neglect & Abuse (IGUANA) is a good practice guideline from the Office of the Public Advocate.
An Enduring Power of Attorney is a legal document that lets you appoint someone who can make decisions for you about personal or financial matters. Financial matters can vary from things like paying bills for you to selling your house. Personal matters are things like deciding where you should live, what services you should have access to and who can visit you. The person you appoint is called an Attorney. The power endures – or continues – if and when you are not able to make decisions for yourself.
You can only make an Enduring Power of Attorney for yourself. The law does not allow you to make one for somebody else. To make an Enduring Power of Attorney, at the time you make the document you must have ‘decision making capacity’ - you must be able to understand what you are doing and to be acting of your own free will (not be under any pressure to make the document).
You can decide if your Attorney can make decisions for you immediately (if you do not want to make those decisions yourself) or only if or when you lose the ability to make decisions for yourself.
Although Seniors Rights Victoria recommends that everyone has an Enduring Power of Attorney, there are times when the Attorney abuses their powers and elder abuse occurs. In addition, Enduring Powers of Attorney can be tailored to meet your specific circumstances and desires. Consequently, Seniors Rights Victoria recommends that a lawyer be used to draw up an Enduring Power of Attorney
Fact sheets, forms, and guides to making powers of attorney are available from the Office of the Public Advocate and from Victoria Legal Aid. Seniors Rights Victoria also has some short videos about making Powers of Attorney on its website at ….