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Minis & Mocas

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This title might conjure images of an afternoon of tiny finger sandwiches, cubes of marbled cake and chocolate laced with coffee. Unfortunately it’s not about anything that pleasant. It’s a reference to something that’s a different sort of ‘daily fare’ for many in our community.

Mini Mental State Examinations (MMSE) and Montreal Cognitive Assessments (MoCA) are two of the tools used to screen a person for cognitive impairment – often in connection with a decline into dementia.

Statistics reveal that in 2017 dementia was the leading cause of death for Australian women, the third for men and the second for all Australians. Dementia is also the leading cause of disability for over 65s and the third for all Australians. Currently there are some 450,000 Australians living with dementia – nearly 2% of Australia’s population. Every day, approximately 250 people begin to live with dementia. And it doesn’t discriminate by age. Approximately 26,000 of those living with dementia are in their 50s, 40s and even their 30s. It’s an epidemic and a risk that we all face.

Aside from the care needs, there’s an important mind shift needed by all of us. There’s a real need for greater empathy for and understanding of the jumble that can mark the world of those living with dementia.

One thing to understand is that dementia doesn’t necessarily mean a loss of all or any legal decision making capacity.

Assessing someone’s decision making capacity is a complex medical and legal process. Experienced and often specialist health professionals apply various tests to determine if and how badly someone is cognitively impaired. This assessment helps a Lawyer and, if necessary, the Courts or Tribunals, to decide if a person has enough decision making capacity for a task. Not every task needs the same decision making capacity. For example managing ordinary banking needs less than selling a home; or agreeing to a tooth extraction needs less than heart surgery.

What if you’ve lost decision making capacity for something? Who makes those decisions for you? Most commonly an Attorney appointed by you under an Enduring Power of Attorney (EPA) or a Guardian or Administrator appointed by the Queensland Civil and Administrative Tribunal (QCAT) … but not always.

Aside from those formal decision makers, things can get uncomfortably complex due to a raft of poorly regulated informal decision makers under various legislation. Unfortunately there isn’t enough space here to describe those roles or the complexities.

The most secure and certain way to determine who makes decisions for you if you lose capacity, is by making an EPA well ahead of time.

An EPA is an undeniably powerful tool. In the right hands an EPA should be extremely good protection. In the wrong hands it can be absolutely disastrous. Hence the most important question when making an EPA is ‘who’. Think long and carefully about who to appoint. After all you’re giving an Attorney a licence to be you.

When making decisions, an Attorney must apply an extensive set of legislated Principles. What features prominently in those is an Attorney’s obligation to seek out, work out and apply your views and wishes when making your decisions. Hence it can be worth considering supplementing your EPA with a document that expresses your views and wishes about important matters.

Recording your views and wishes while you have the capacity to do so is the best way to make sure that they’re known. This should increase the chance of decisions being made in a way that you would have made them yourself – in line with your values, beliefs and inclinations.

We’re all at risk of a loss of decision making capacity through illness or injury. Substitute decision making arrangements (especially EPAs) must be documented clearly, comprehensively and early. Misfortune happens unexpectedly – and it can quickly become too late to document anything. Too often Clients leave it too late.

I’ve seen many sad consequences of poor or no documentation. These include countless rifts in family relationships because of the way decisions (even honest ones) are made by Attorneys; countless cases of disputes over who should make an Application to QCAT to become a decision maker; and not to mention the cases of QCAT appointing the Public Trustee or Public Guardian instead of family members because of all too common family disagreements.

Queensland EPAs are relatively easy to complete. At one level this is a good thing. Unfortunately at another level it is not a good thing. Just because the EPA is completed doesn’t mean that it’s completed well or will do the job that it needs to do for the person making it. Hence when making an EPA make sure to get good comprehensive advice – most especially if you’ve been told to expect to have to live with dementia.

Make the necessary arrangements clearly, comprehensively and now. Then you can safely go out and enjoy as many of the those more pleasant minis and mocas like mini sandwiches, cake cubes and coffee laced chocolate as you like – all with the assurance that you’ve done what you need to do if incapacity should greet you.

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