Presentation to MD3 (3rd year Doctor of Medicine), ERC (Extended Rural Cohort) students at the Rural Health Academic Centre in Shepparton planned for Wednesday 12/2/2014 on legal aspects of ageing covering capacity, powers of attorney, advance care plans, advance health directives, elder abuse, fitness to drive, prognostic guidance

1. Legal Aspects of Ageing
Dr Margi Gould
February 2014
Rural Health Academic Centre
Excellence and equity in Rural Health
through education, research and
engagement

2. Learning objectives
• Understand the concept of ‘capacity’ and its relevance to decisionmaking by older patients including decisions regarding powers of
attorney, wills, medical and lifestyle matters
• Understand the separate types of powers of attorney covering
financial, medical and lifestyle matters
• Understand the legal framework for guardianship and administration
in Victoria
• Understand the legal framework for medical decision-making
including decisions about the limitation of medical treatment and
advance care planning
• Appreciate the significance of elder abuse, along with risk factors for
abuse and interventions
• Appreciate issues associated with ageing which can affect fitness to
drive

3. Capacity
•
•
•
•
What is it ?
Who has it ?
Who needs to assess it ?
Why do we need to assess it ?

7. Broadly speaking, when a person has
capacity to make a
particular decision, they are able to do
all of the following:
• understand the facts involved
• understand the main choices
• weigh up the consequences of the choices
• understand how the consequences affect
them
• communicate their decision

8. For example,
a person might be able to decide
• Where they want to live (personal decision),
• but not be able to decide whether to sell their
house (financial decision).
• They can do their grocery shopping (make a
simple decision about money),
• but not be able to buy and sell shares
(make a more complex decision about money).

9. Capacity can be regained
• A person can regain capacity or increase their capacity.
• For example, they can regain consciousness
or learn new skills
that will enable them to make certain decisions for themself.
• A further example relates to people with a mental illness.
They can have capacity to make decisions at certain times
but not be able to make some or all decisions at other times.
• It is essential to remember that capacity is decision specific.
• This means that, where there is doubt, a person’s capacity
must be reassessed every time a decision needs to be made.

10. Examples of Capacity
Thinking back to your experiences inMD2
Have you assessed someone’s capacity ?
Have you seen someone have capacity
assessed?
Can you think of other examples / situations ?
Can you think of barriers ?
Can you think of pitfalls ?
What resources / tools do you know of ?

11. http://www.publicguardian.lawlink.nsw.g
ov.au/agdbasev7wr/publicguardian/docum
ents/pdf/capacity_toolkit0609.pdf

12. MMSE IS NOT AN ASSESSMENT OF
CAPACITY

13. JUST BECAUSE A PERSON MAKES A
DECISION YOU DISAGREE WITH
(OR WOULDN’T MAKE YOURSELF)
DOESN’T MEAN THEY LACK
CAPACITY

14. Just because someone agrees with
you and cooperates with your plan
doesn’t mean they have the
capacity to consent to the medical
treatment plan

17. Powers of attorney (Victoria)
Definition
A legal document where a competent adult (‘the donor’)
gives another competent adult (‘the attorney’) the power
to make decisions on their behalf.
There are four powers
1. general power of attorney
2. enduring power of attorney (financial)
3. enduring power of attorney (medical treatment)
4. enduring power of guardianship

18. Why have enduring powers of
attorney?
•
•
•
•
•
life is unpredictable
general power of attorney becomes invalid if the
donor loses capacity; ‘enduring’ means the power
continues
allows the donor control over who makes decisions
on their behalf in the event that they can’t
creates formal relationship with someone who knows
the donor’s wishes for financial, medical or lifestyle
matters
avoids applications to VCAT for
guardian/administrator

19. Enduring powers of attorney
• Who can make one?
• Anyone 18 years of age and over who has
capacity.
• ‘Capacity’ or ‘legal capacity’ means the ability
to reason things out.
•
To understand, retain, believe, evaluate
and weigh up relevant information.

20. Enduring powers of attorney
At the time of making the appointment, the donor must be able
to understand matters such as:
– the sorts of powers the attorney will have
– the sorts of decisions they will have the authority to make
– the effects that their power could have on the donor
– how to cancel the arrangement in the future

21. Enduring powers of attorney
• Choosing an attorney
• must be 18 and have capacity themselves
• know and understand the donor’s interests and
wishes
• have the necessary skills
• be trustworthy
• be available and prepared to do the job
• donor can revoke EPA while competent and
appoint someone else.

22. Enduring power of attorney (financial)
• Instruments Act 1958 (amended 1 April 2004)
• for financial and legal decisions only
•
e.g. managing your banking, property or
paying bills
•
Note: enduring power of attorneys made prior
to
April 2004 remain valid as long as they
were made according to the legislation of the
time

23. Enduring power of attorney (financial)
• Making the appointment
•
can specify when the power begins
•
can appoint more than one attorney
o
joint
o
joint and severally
o
alternative
•
can place conditions/limitations on the operation of the
power
•
signing of the form must be witnessed
•
attorney(s) must formally accept the appointment

24. Enduring power of attorney (financial)
• Responsibilities of the attorney
The attorney must:
• act in the donor’s best interests
• wherever possible, make the same decision the
donor would have made
• keep accurate records of dealings and
transactions made under the power
• keep the donor's property and money separate
from their own
• avoid any conflicts of interest

25. Enduring power of attorney
(medical treatment)
• Making the appointment
•
•
•
•
can only appoint one agent
can appoint alternate agent
power begins when person loses capacity
signing of the form must be witnessed

26. When a doctor witnesses a MEPOA they are
declaring that they believe the signatory to be
competent (even if they are the second
witness)
? Same standard for nursing staff
? Same standard for medical students

27. MEPOA
• Agent’s powers
• agent can consent to medical and dental treatment, and
•
refuse medical and dental treatment
• agent can only refuse medical treatment on behalf of a
patient if:
- the treatment would cause unreasonable distress, or
- the agent believes that the donor would consider the
treatment unwarranted

28. MEPOA
• Limitation on agent’s powers
• cannot consent to ‘special procedures’
o sterilisation
o termination of pregnancy
o removal of tissue for transplant
These require consent from VCAT.
• cannot consent to psychiatric treatment
o governed by the Mental Health Act 1986

30. Enduring power of guardianship
• Guardianship and Administration Act 1986
• for lifestyle decisions only
• e.g. where the person lives or healthcare they
receive
• attorney is known as ‘the guardian’

31. Enduring power of guardianship
• Making the appointment
•
•
•
•
•
•
can only appoint one guardian
can appoint an alternative guardian
cannot appoint professional carer
power begins when donor loses capacity
signing of the form must be witnessed
guardian must formally accept the
appointment

32. Enduring power of guardianship
• Making the appointment (cont.)
• can specify the guardian’s powers
o accommodation
o healthcare
o access to persons
o employment
• can state wishes for your guardian to take into account when
making decisions

33. You Decides Who Decides

34. THE GUARDIANSHIP LIST, Victorian
Civil and Administrative Tribunal
(VCAT)
• Some people have a disability caused by an injury, illness or
ageing.
Because of their disability, they may be unable to
make reasonable decisions about issues like their health
care, accommodation or financial affairs.
Under the Guardianship and Administration Act 1986 you
can apply to VCAT for an order appointing a guardian, to make
personal and lifestyle decisions, or an administrator, to make
financial and some legal decisions, for an adult with a disability.

35. VCAT will only make an order
appointing a guardian or an
administrator when:
• the person has a disability,
• the person cannot make reasonable decisions
because of that disability,
• there is a need to make decisions,
• there is no less restrictive way of meeting this
need, and
• it will promote the person’s best interests.

36. VCAT
• VCAT requires a medical report describing the
disability and its effects on the person’s ability
to make reasonable decisions.
• VCAT will also consider the wishes of the
person and of their nearest relatives or other
family members.

37. Applying for guardianship and/or
administration is easy.
• A special printed form is used and is available
from VCAT.
• Information and assistance is also available to
help you from the Office of the Public Advocate’s
Advice Service – 9603 9500/1800 136 829.
• The VCAT hearing is not as formal as a court
hearing and
• VCAT tries to help people appearing before it feel
comfortable.
• If a person cannot travel to a hearing VCAT may
agree to accept evidence over the telephone.

38. VCAT and the Office of the Public
Advocate have a 24 hour
emergency service.
• Hearings must be fair and unbiased.
• Legal representation is not necessary, although you
may ask VCAT to allow you to have a lawyer.
• If VCAT makes an order appointing a guardian or an
administrator the order may last for up to 3 years, but will
be reassessed during that time.
• The guardian and/or administrator must act in the
person’s best interests

39. What is ACP ?
What is an AHD ?
Advance care planning is about planning ahead
for future healthcare, in case a person
becomes too sick to speak for themself.
Another name is Advance Health Directive

40. Who needs ACP ?
Residents of RACF
Elderly Patients
Palliative Care Patients
Patients with early dementia
Patients with chronic progressive disabling diseases (eg
MS, Parkinson’s Disease)
“Frequent Flyers” with increasing attendances
Patients for whom you would answer “no” to the
surprise question
Patients who have definite beliefs about their
healthcare (even if different to your own).

41. The paperwork
•
•
•
•
•
•
MEPOA
Statement of Choices
Refusal of Treatment Certificate
Limitation of Medical Treatment
Medical Treatment Plan
Letter (signed & dated written document)
describing the persons wishes & values

42. Resources on OPA website

45. Refusal of Medical Treatment
Certificates
• A specific legal document
• Lodge with VCAT within 7 days of signing
• OPA website has PDF formatted refusal of
treatment certificates for both competent and
incompetent patients available for download

48. LMT
• Have you seen LMTs completed ?
• Who can complete an LMT ?
• Where is an LMT kept ?

50. The paperwork of
Advance Care Planning /
Advance Health Directives
Just like consent paperwork, it represents that a
conversation has taken place.
It is ongoing (a work in progress)
It can be changed at any time

51. ACPOK

52. What is Elder Abuse?
• ?
• 6% of older persons in the community are
likely to experienced significant abuse in the
last month

53. Elder Abuse Subtypes
•
•
•
•
•
Psychological
Physical
Sexual
Financial
Neglect

54. Key points re Elder Abuse (article)
• To explore a risk factor framework for abuse through a
systematic literature review of studies in communitydwelling elders.
• Risk factors can be grouped as relating to the
elder person,
perpetrator,
relationship
and environment.
• 13 statistically significant risk factors were reproducible
in a range of settings.
• Current evidence supports the multifactorial aetiology of
elder abuse.

55. Risk factors : Elder Person
•
•
•
•
•
•
•
•
Cognitive impairment
Behavioural problems
Psychiatric illness or psychological problems
Functional dependency
Poor physical health or frailty
Low income or wealth
Trauma or past abuse
ethnicity

56. Risk Factors : perpetrator
• Caregiver burden or stress
• Psychiatric illness or psychological problems

57. Risk factors : relationship
• Family disharmony
• Poor or conflictual relationships

58. Risk factors : environment
• Low social support
• Living with others (except for financial abuse)

59. So you suspect elder abuse ?
• What next ?

61. 4.1 Requirements of the driving task
The driving task involves a complex and rapidly repeating
cycle that requires a level of skill and the ability to
interact with both the vehicle and the external
environment at the same time.
Information about the road environment is obtained via
the visual and auditory senses. The information is
operated on by many cognitive processes including
short- and long-term memory and judgement, which
leads to decisions being made about driving.
Decisions are put into effect via the musculoskeletal
system, which acts on the steering, gears and brakes to
alter the vehicle in relation to the road.

62. This repeating
sequence depends on
• vision
• visuospatial perception
• hearing
• attention and concentration
• memory
• insight
• judgement
• reaction time
• sensation
• muscle power
• coordination.

63. Age & driving
• Advanced age, in itself, is not a barrier to driving, and functional
ability rather than chronological age should be the criterion used
in assessing the fitness to drive of older people.
Age-related physical and mental changes vary greatly between
individuals but will eventually affect the ability to drive safely.
Professional judgement must determine what is acceptable decline
(compensated by the patient’s long experience and self-imposed
limitations on when and where they drive) and what is irreversible,
hazardous deterioration in driving-related skills, requiring reporting
to the licensing authority.
This may require careful consideration and specialist referral.
• Note that some driver licensing authorities require medical
examination or assessment of drivers beyond a specified age.

64. There are some medical diagnoses
(many more common in the elderly)
that require reporting to the licensing
authority
• Can you think of some ?
• Do you know the consequences of reporting ?
• Or of not reporting?

65. Driving & the elderly
• When do you need to think about driving ?
• Have you seen or assisted with a driving
assessment ?
• What did it involve ?
• What factors influence the safety to drive
decision ?

75. Case AB
• Mrs AB is a 70 year old frail woman who lives
in her own home with her middle-aged son
whom has an acquired brain injury.
• She is independent with her personal care,
and undertakes many of the household
activities such as cooking and cleaning.

76. AB
• Over the last six months her son has
increasingly taken over managing the
finances, and needs to prompt her to turn off
the gas after cooking.
• She still drives.
• There are no other children, and she has little
contact with other family members, nor any
close friends.

77. Risks
• ?

78. AB cont
• She presents with multiple rib fractures and
pulmonary contusions.
• While initially quite guarded, she eventually
tells staff in the emergency department that
her son pushed her over and kicked her.
• She does not want police involved as she
believes that her son would kill her.

79. What assessments need to be done ?
• ?

80. AB cont
• The treating team notes significant cognitive
impairment, most likely vascular dementia, and the CTbrain scan undertaken during the work-up reveals
previous head trauma and a small haemorrhage.
• The team considers that it is unsafe for her to return
home and recommends that she move into residential
care.
• She accepts this recommendation, but there is doubt
as to whether she has an adequate grasp of her
financial matters and the ability to understand the
financial aspects of moving into residential care.

81. Just because someone agrees with
you and cooperates with your plan
doesn’t mean they have the
capacity to make the decision

82. discussion
• Issues ?

83. Issues
• Elder abuse
• Capacity
– Abuse
– Medical treatment
– Choice of residential care
• Substitute Decision Makers
• Driving

84. Case CD
• Mr CD is an 85 year old man, living in high level
care.
• He has advanced dementia, is largely aphasic,
and no longer recognises family members.
• He spends most of the day in bed or sitting in a
recliner chair.
• His weight has gradually declined over the last six
months to 45 kg and he has had three hospital
admissions for aspiration pneumonia due to
ongoing swallowing difficulties.

85. CD cont
• He presents with a further episode of
aspiration pneumonia.
• His eldest daughter requests full treatment
including the insertion of a PEG feeding tube.
• In relation to resuscitation issues, she also
requests cardiopulmonary resuscitation and
invasive ventilation should he have a cardiac
arrest or develop respiratory failure which
cannot be treated on the ward.

86. CD cont
• His wife appears to accept the advice of her
daughter.
• Unfortunately, there is no advance directive to
guide the treating team on Mr CD’s wishes.

87. Discussion
• ?

89. Would having the following
information help ?

96. Acknowledgements & references
•
Synopsis - Principles of Clinical Practice 3 - Aged Care p34-37 © University of
Melbourne - Melbourne Medical School – 2014 (MDConnect)
• Documents from OPA including slides & resources from Take Control Workshop
(June 2013)
http://www.publicadvocate.vic.gov.au/
Including “when medical treatment is abated”
Slides from ACPOK education sessions
• http://www.publicguardian.lawlink.nsw.gov.au/agdbasev7wr/publicguardian/docu
ments/pdf/capacity_toolkit0609.pdf
• http://www.anzsgm.org/vgmtp/Legal/index.html
• Johannesen M, Giudice D. Elder abuse: a systematic review of risk factors in
community-dwelling elders. Age & Ageing. 2013; publication pending.
• NDSS Diabetes & Driving
• Austroads. Assessing fitness to drive for commercial and private vehicle drivers.
4th edition. March 2012.
www.austroads.com.au/assessing-fitness-to-drive/
• Prognostic Indicator Guidance Paper ©
National Gold Standards Framework Centre England 2005 Date: Sept 2008

97. E-Learning Packages
• The
Victorian Geriatric Training Program
Learning Modules for Junior Doctors
http://www.anzsgm.org/vgmtp
• Palliative Care Curriculum for Undergraduates (PCC4U)
http://www.pcc4ulearningresource.org/