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Affairs of the heart (Part 2)

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In my previous article entitled “Affairs of the Head, Heart and Hip-pocket” I left hanging in the air the question of whether an Enduring Power of Attorney (EPOA) could make decisions for, or control, someone’s contact or relationships with other people.  If you haven’t already read the article, click here to read it now.

The example I gave was in relation to two residents of an aged care facility who became smitten with each other and where the EPOA for the female resident demanded that the facility put a stop to it. The question is – could they, and, if they could, should they?

Lawyers are often frustrated, mostly by the law itself. On this issue, the path to the answer is a long and winding road. It is the old shibboleth, ‘on the one hand and on the other’.

The first port of call in search of the answer lies in that ubiquitous concept called ‘capacity’ or, in other words, the ability of someone to make their own decisions. The law states that everyone is presumed capable of making their own decisions until there is convincing evidence to the contrary.  It also says that the measure of a person’s ability to make their own decisions depends on the nature of the decision. While the fashion aficionados might disagree, the capacity to decide what to wear each day is not, normally, a complex decision. Alternatively, the capacity to make investment decisions about your money is far more complex.

As such, in the case mentioned, both residents are presumed to be able to make their own decisions about being, and doing what they like, with each other. The ability to decide who I like, love or lie with, is not a high bar to jump. Provided their activities don’t impact adversely on other people in the facility, they are free to express themselves.

Here it comes – the ‘but’. What if either, or both, of the residents don’t have the capacity to make decisions about who they befriend or fall in love? To some outside observers, falling in love can be, in itself, a sign of insanity – ‘I just don’t know what they see in each other!’ It’s inconceivable, isn’t it, that two people in an aged care facility could do so? No it’s not!

But, perchance, they don’t have the capacity to make the decision because any relationship normally requires that the parties consent if the capacity to do so is impaired, they are not able to give that consent.

Can an EPOA in this context make the decision for that person to not consent or, indeed, to consent?

The law, at least in Queensland, allows an EPOA to make decisions for someone else in relation to what is known as ‘personal matters’. Those matters are defined to include where a person lives, with whom the person lives and day to day issues, such as what they eat and what they wear. In addition, it requires the EPOA to act in the best interests of the person and to comply with certain principles in making these decisions including recognising the person’s human rights, respecting their worth and dignity as an individual, and encouraging and supporting the person to achieve their maximum physical, social and emotional potential.

So what does all that mean? On the face of it, the EPOA could be a matchmaker or a matchdestroyer. But, in seeking to control a person’s personal life, they must comply with the principles and rights of that person. If good health requires us to fight the scourge of loneliness, as it does, it would be a brave and foolish EPOA who sought to isolate the person from normal human contact.

In the end, if the facility believed the daughter’s direction for no contact was not in the best interests of the person, they could always refuse to comply. That would then leave the EPOA to decide whether to seek to enforce their direction through a Tribunal. Alternatively, the facility could challenge the direction itself in the same Tribunal.

If we accept all the evidence that exists, human contact and relationships are crucial to later life happiness and health. While falling is a major fear in later life, maybe love is the best fall you can have in aged care.

Of course, to overcome any concerns about being able to consent to relationships in later life, we chould adopt an American legal academics suggestion that, in addition to an Advance Health Directive, we should consider doing an Advance Sex Directive.

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