EnableMe | enableme - stroke recovery and support

How often do we humans take time to look beyond the present and glimpse into the land of tomorrow - our future?

Whilst we are young, or well, or still able to get around and ‘strut our stuff’, we think we are indestructible. We go through our days oblivious of all the things that can – and sometimes do – go wrong: never taking into consideration the consequences. We have a tendency to put things out of our mind and bury our head in the sand when it comes to legal affairs; perhaps because we consider them distasteful to think about or discuss; or the timing is ‘not quite right’.

During my working life, I often heard young people say they didn’t need to look at the legal side of their life – Wills, Power of Attorney or Power of Guardianship. I kept hearing, ‘It is only the elderly who need to concern themselves with those things’. But is that so? Terrible things can happen at any age. A young person can become medically or mentally unwell, or meet with a terrible accident, with the result they are legally incapacitated and unable to appoint someone of their choosing to look after them or operate their affairs as their legal proxy.

Although Clive and I had the forethought to make our Wills, we had neglected to put in place: Power of Attorney and Power of Guardianship. We thought making our Wills was what was needed for the time being; neither of us took time to glimpse into the world of tomorrow.

I have no qualms speaking about Clive’s issue. When Clive experienced his stroke and as a result of the legacies of his stroke, he was unable independently to undertake or attend to his legal and financial duties; this placed me in a predicament; as he couldn’t manage his affairs. He couldn’t read or write; therefore, he couldn’t understand written documentation. This dilemma impacted greatly on the already long list of legacies we had to contend with as a result of Clive’s stroke. Everything we had was in joint names: our circumstances had drastically changed. We had neglected to assigning Power of Attorney, which would permit me to run our financial affairs on Clive’s behalf; Power of Guardianship, which would enable me to ensure that Clive was adequately protected and the correct medical decisions were made on his behalf and Anticipatory Direction, which would also ensure that Clive’s personal wishes, which he had made me promise many years before to honour, would in fact be adhered to.

When Clive was still at Hampstead Rehabilitation Centre, arrangements were made for a Power of Attorney to be drawn up to give me the sole right to operate and run our financial affairs. The lawyer came to the centre and, with the medical doctor acting as witness, explained the document to Clive. He then asked him whether he understood the need for it to be drawn up and put in place. Although at that stage Clive couldn’t speak, read or write, he nodded that he understood the circumstances surrounding the document. He signed the document to the best of his ability, and it was then signed by the other parties and legally witnessed. This enabled the financial side of our affairs to fall in place.

Although I was relieved to know that I was ‘solely’ able to conduct our financial affairs, I felt tremendous guilt having to go down this path. I felt I was stripping away yet another of Clive’s rights. Prior to his stroke his life was under his control, now, as a direct consequence of his stroke, his life was out of his control; he was completely reliant on others; especially me, his wife/carer/advocate.

We who travel along this path hear terrible, heart-breaking stories of deceptive people who have sinister intent and do not have a conscience when deceiving those who, through no fault of their own, are placed in this position. Clive and I trusted each other; he knew I would be honest, he knew I would do the right thing and have our best interests at heart. Clive was always included in decision-making when we needed to purchase anything of significance post stroke: it was important for his self-esteem, self-worth and morale. Just because he’d had a stroke and couldn’t read or write, it didn’t mean he was invisible: he was still an integral member of our family. He could still give his nod of approval or shake his head in disapproval.

As the years progressed it was time for Clive and me to review our legal documents. We engaged a lawyer who kindly came to the house; we updated our Wills and put in place Power of Guardianship. We felt protected for that next phase of our journey. Clive and I were already registered as organ donors and held the view that medical science is constantly making wonderful progress; if we had something we can no longer use and someone is in dire need of it, why not give them a second chance at life?

In later years, Clive and I went one step further and organised a Living Will, or Future Directive (Anticipatory Direction), which set out our wishes should our health status deteriorate to the extent that decisions would have to be made on our behalf. This document exempted our girls from having to second-guess our wishes, and struggle to make painful, soul-searching decisions on our behalf should it become necessary. We stored a signed copy with our legal documents and gave additional copies to the medical professionals we had assigned to monitor our health and well-being. The girls wouldn’t have to make that decision, it had already been made: it was final and it was what Clive and I wanted.

When engaging the services of a Financial Advisor, one of the first questions asked was ‘Do you have a Will, Power of Attorney and Power of Guardianship put in place? Hospitals ask the same question, which now includes the Anticipatory Direction.

It really makes sense to explore these legal avenues whilst you are well and have the mental capacity to make known who you would like to manage your affairs and to ensure that your wishes are carried out as you intended. Keep in mind that once the person is deceased, the Power of Attorney and Power of Guardianship will cease. The executor named in the Will is tasked with carrying out the final phase of implementing the person’s wishes. I cannot emphasise enough the importance of putting these documents in place. Without them, if unforeseen events occur, a messy, legal minefield can result, which can be very expensive to put right.

Don’t make the mistake of thinking that you’re too young or too busy, or that you will do it tomorrow – tomorrow may not turn out according to your plans. We can’t foresee our future. Don’t leave everything until it is too late.

Due to continual changes in the legal system, updated advice should be sought from your lawyer, or you could contact The Office of the Public Advocate in the state in which you reside. For people residing in South Australia www.opa.sa.gov.au

Cheers! Clive – happy hour (2007)

Author: Echoes of a Closed Door – A Life Lived Following a Stroke

www.carolrfuller.com

Hi Carol, I too have gone down this path with my husband Neil and at the time of of doing so he was more than happy and agreeable to do so. However 2 yrs down the track and due to his stroke he has become quite paranoid, agitated and anxious thinking I now want to get rid of him. Of cause this is not the case.

For almost 3yrs all I have done is fight for his rights as a disabled person, to get him on benefits and have services come to the home. It has been an uphill battle but like you I am wife/carer and advocate.

One thing I don't understand is, what is Anticipatory Direction? Could you please elaborate.

Regards Carol Simpson.

I think the Anticapatory Direction may also be known as an Advanced Health Directive or associated with it.

Used to say how you want to be treated when you can't tell people.

Think of statements like the following:

- "I trust my wife Mary to make decisions about my healthcare, if she is not available then I trust my lifelong friend Joey to make decisions on my behalf".

- "I do (not) want my organs donated".

-"For religious reasons I do not want blood transfusions".

- "If brain function has ceased I do (not) wish to go on life support"

....and so on.

It's fine to make these decisions yourself, but when you are incapable of expressing them well meaning healthcare workers or family(next of kin/Statutory Health Attorney) can do what they feel is best or in your best interests, not what you actually wish done.

An issue that many will experience is that if a kangaroo court / tribunal gets involved (usually due to intervention by a spotter in the public hospital system or a family member with early inheritance syndrome), anyone with a brain injury is at risk of being found incapable of managing some or all of their own interests. All too often, Enduring Powers of Attorney, Binding Death Nominations and comparable arrangements (including those executed well before there was an question of capacity) are over-ruled by the kangaroo courts and Public Trustees appointed to MIS-manage the victim's finances. Once the Public Trustee has its avaricious claws on the estate, don't expect to see anything again. For various reasons, many lawyers are not aware of this racket as kangaroo courts actively oppose any representation of victims. There is another issue I won't cover in detail here but there is good reason for lawyers to be terrified of kangaroo courts. Measures exist to protect assets from kangaroo courts / Public Trustees (before intervention), but implementing these is the province of totally trustworthy accountants and lawyers who regard their responsibility to their clients as paramount and who don't slavishly pander to the establishment as many of them do.

Do NOT under any circumstances trust a Public Advocate (Public Guardian in QLD and NSW)

In Queensland at least, the Public Guardian is funded by the Office of the Public Trustee and despite hundreds of fraud complaints being filed against the Office of the Public Trustee, the Public Guardian is yet to so much as squeak. Queensland is certainly more corrupt than any other state although NSW isn't far behind. One of the primary functions of the Public Guardian in Queensland is arranging shonky ACAT assessments to get victims institutionalized. The delegates are well practiced at this however they can be blocked quite easily. Their approaches are pure bluff and when told to rack off hairy legs (providing they are told with 200% conviction) they generally crawl back under their log. Don't even think about being nice to them, they are dangerous reptiles that will bite if you drop your guard. The Public Guardian was never appointed to have any interest in my partner's affairs bar visitation (which she promptly squashed with a DVO) but that didn't deter the grubs from making at least five attempts to do the shonky ACAT bit. It took a few threats of harrassment action before the arrogant grubs finally got the message. Note that there is a Public Advocate in Queensland in addition to a Public Guardian however the former is a nonsense / meaningless appointment that can't even advise what its functions are.