意定监护：澳洲的实践 | 他山之石

分享一篇文章，文章来源“wealth partners.net.au”（澳大利亚的财富管理网站）。这篇文章采用问答方式，针对一个典型的案例，问了两个问题，并给出了专业的解答。

案情并不复杂：“我的年老丧偶的父亲，在接下来的12个月，需要入住一个养老看护机构。父亲已经被确诊为认知症的早期阶段，而事先又没有EPOA(持久授权书)的安排。在这种情况下，我们有权代表我们的父亲吗？”

Q. If dad is deemed incapable of making his own decisions or managing his own affairs, what are our options?

Q: My elderly widowed father will need to move to an Aged Care facility in the next 12 months as he needs support beyond his current home care. We don’t have an Enduring Power of Attorney in place, and he has been diagnosed with early-stage Dementia. Are we able to act on his behalf? 

A:  An Enduring Power of Attorney is a legal agreement that enables a person to appoint a trusted person, or people to make financial and/or property decisions on their behalf. An Enduring Power of Attorney is an agreement made by choice that can be executed by anyone over the age of 18, who has full legal capacity.

Under the law, adults are presumed to have the capacity to make their own decisions unless it can be shown that they lack capacity.  If your father is struggling to make decisions and manage his own affairs, you should speak to a Health Professional and request a capacity assessment test be undertaken. The decision as to whether he has lost capacity would typically be made by a Neuropsychologist, a Geriatrician or a psychiatrist referred by your father’s GP.

明月点评：在澳洲，宣告有无行为能力，是神经心理学家、老年学家、精神病专家的工作。在中国，这是公证处和法院的职权范围。

If the medical opinion is that your father has lost legal capacity, he will be unable to grant you an  Enduring Power of Attorney.  Without an Enduring Power of Attorney, you will be unable to make financial decisions on his behalf.

Once he has been deemed to have lost legal capacity, any contract signed by your father after the diagnosis, becomes invalid or unenforceable. Therefore an Aged Care facility will be unable to admit your father as a resident, nor allow you to sign the application for admission on his behalf. This is a major problem and will cause delays in his admission.

If your father currently has legal capacity, then establishing an Enduring Power of Attorney and Enduring Guardianship should be a matter of priority. Speak to a solicitor who is an estate planning expert.

Whilst you are speaking to the solicitor, it might be timely for your father to review his Will to ensure the Will is up to date and reflects his wishes.  Typical examples of issues where Wills need to be updated will include, the original Will is lost, executors are dead, bequests are in place for assets that no longer exist and beneficiaries who may be dead or unknown to the executor.

明月点评：在做持久授权书的时候，同时还要确认一下遗嘱是否需要更新。这也值得我们参考学习。

Regardless of whether your father is happy with his current will, locating a copy of the will and checking its validity should be an important start and could save considerable inconvenience and expense later on.

Q: If dad is deemed incapable of making his own decisions or managing his own affairs, what are our options?

A: In the absence of a valid Enduring Power of Attorney, you would need to make an application to the  Civil and Administrative Tribunal (CAT) in your state for a Financial Management Order to obtain control over your dad’s financial affairs.  Information can be found on your State’s CAT website outlining the application process and what you need to consider. If you are a resident of NSW the website is www.ncat.nsw.gov.au 

明月点评：在澳洲，要去民事行政法庭申请“财务管理许可”，但这只是获得对已经丧失行为能力之人的财务管理权，并不包括人身管理（人身、医疗、生活方式）的权利，这个和香港类似。可以参考阅读明月律师之前的文章：游学日记：香港的监护委员会。

Once a Financial Management Order is granted, you should be able to manage your dad’s financial affairs. You need to be aware that CAT can be appointed as a co-financial manager under a Financial Management Order. This would mean that financial and legal decisions you make on his behalf may need to be passed and approved by CAT on an ongoing basis. Furthermore, you may be required to report back to CAT on an annual basis updating them on your dad’s personal and financial circumstances.

明月点评：在澳洲，获得“财务管理许可”之人还是需要随时向法庭报告被“监护”之人的人身和财务状况的，法庭相当于是一个监督人。在中国，法院是不告不理的，法庭不会管这事。所以，我们在设定意定监护时候，最好能够指定一个监督人。

You also need to be aware that Financial Management Orders do not cover day-to-day lifestyle or care decisions. A separate application will need to be made to obtain Guardianship Orders. A Guardianship Order allows CAT to appoint you as your dad’s guardian to make personal, medical and lifestyle care decisions.

Having to apply to CAT for Guardianship or financial management may cause considerable inconvenience and delays in managing your dad’s financial and personal care needs.

明月点评：在澳洲，申请指定监护人、申请财务管理许可是分开的。看来，人和财分而治之，是普通法国家的惯例？在我国目前的意定监护实践中，意定监护更多是一种“替代”，监护人的权力范围是涵盖“人”和“财”的。

If your dad currently has legal capacity, then establishing an Enduring Power of Attorney and Enduring Guardianship should be a priority now.

明月点评：在这个案例中，如果事先没有持久授权书和监护委托，父亲入住养老看护机构会遇到很大的障碍，即便事后申请到了监护资格，也会大大延误父亲的治疗和看护。这也就是为什么要未雨绸缪安排的原因。这一点，西方和中国都是一样的。

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