Difference between a Power of Attorney and Advance Care Directive
Sometimes, people can get confused when considering whether to make an Advance Care Directive (ACD) or a Power of Attorney (POA). Each document serves a different purpose, however, both are equally important to have in place. First, we need to understand the nature and effect of each document and then explore the differences between the two.
What is a power of attorney?
Types of Powers of Attorney
There are 2 main types of Powers of Attorney:
General Power of Attorney: appoints someone to act in relation to another person's financial and legal affairs for a limited time. It is automatically cancelled if your capacity (or decision-making ability) becomes impaired.
Enduring Power of Attorney: appoints someone to act in relation to another person's financial, personal and medical affairs and will continue to operate should you have impaired capacity.
'Capacity' essentially means that you are an adult and you know and understand what you are doing.
In some states in Australia, a person can appoint another person to act in relation to their medical and personal matters in a Power of Attorney document. In other states, a person must appoint an Enduring Guardian to look after their medical and personal matters.
The laws relating to Powers of Attorney vary between states and have recently undergone a national review. Despite popular thought, no intention has been shown to make national uniform Power of Attorney laws.
It's important to have a valid and up-to-date Power of Attorney document in place to ensure that a Court does not appoint someone to look after your affairs if you ever become incapacitated.
What is an Advance Care Directive?
An Advance Care Directive can be called different names in different states. For example, in the Northern Territory, an ACD is known as an Advance Personal Plan.
What is the difference?
A Power of Attorney appoints someone else to make decisions on your behalf, whereas an ACD sets out your wishes directly to your medical treatment providers should you be unable to communicate what those wishes for medical treatment are.
In some states and territories (such as the Northern Territory), you have to use an Advance Care Directive, or Advance Personal Plan to appoint an Enduring Attorney. In some states or territories, the previous Enduring Power of Attorney has been replaced by an Advance Care Directive (can also be called an Advance Personal Plan, Advance Health Directive or Advanced Health Direction).
If you are incapacitated in the future and your medical treatment providers have a choice between a POA and an ACD, then any wishes set out in the ACD will take precedence over any decisions made by an Attorney under an Enduring Power of Attorney.
This is because an ACD is your document that specifically sets out your wishes and what treatment you would like to receive at this time. You have made these decisions ahead of time and have let your medical providers know. If your medical providers have reason to believe that you have changed your mind about the treatment since the ACD was made, then they have the power to override the ACD.
If you are over 18 years of age and have capacity, you should ensure that you have both an Enduring Power of Attorney and ACD in place. Although it's not enjoyable to think about, it's important to let your loved ones and others that will be responsible for your care know how you would like to be treated at this time.
It's also important that you have appointed someone that you trust to manage your other important matters, such as your financial and legal affairs, under an Enduring Power of Attorney. Both documents are equally important in planning for your future.
The Quick Laws Power of Attorney kits include both power of attorney and advance care directive forms to ensure that your estate planning is comprehensive.
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This article contains information of a general nature only and is not specific to your circumstances. This is not legal advice and should not be relied upon without independent legal or financial advice, specific to your circumstances.