What happens if the person responsible for making decisions (Enduring Power of Attorney) disagrees with the care provider?

What happens if an Enduring Power of Attorney disagrees with the Support at Home provider?

A disagreement should first be handled through discussion, review of the person’s wishes and clarification of each party’s legal authority.

The provider should not automatically follow either the attorney or its own preferred approach without considering:

• whether the participant can make the decision themselves

• what the participant wants

• whether the Enduring Power of Attorney is active

• which decisions the attorney is legally authorised to make

• whether the proposed care is safe and consistent with the support plan.

The participant’s decision comes first

Having an Enduring Power of Attorney does not mean the older person loses control of their care.

If the participant can understand, consider and communicate the particular decision, they should make it themselves. The provider must support their choices and provide information in a form they can understand.

Decision-making capacity is specific to the decision and the time. A person may need help understanding a complex contract but still be able to choose:

• which worker visits

• when they receive services

• whether they want personal care

• who receives information about them

• whether they wish to change providers.

A disagreement between an attorney and the provider should not result in the participant being excluded from the discussion.

What authority does the attorney have?

The provider should examine the actual legal document rather than relying on the title “Enduring Power of Attorney.”

The document may authorise decisions about:

• finances and property

• personal or lifestyle matters

• contracts and service payments

• healthcare, depending on the state or territory and type of appointment.

Some registered supporters also hold enduring powers of attorney, guardianship or similar legal authority. My Aged Care calls these people appointed decision-makers, but they may act only within their active legal authority.

For example, an attorney authorised only for financial matters may be able to question invoices or approve payments, but may not have authority to consent to medical treatment.

In Victoria, medical treatment decisions are generally made by an appointed or legally identified medical treatment decision-maker when the person cannot decide—not simply by anyone holding a financial power of attorney.

Common areas of disagreement

Disputes may involve:

• whether a service is safe or clinically appropriate

• changing or reducing services

• the use of a particular worker

• service prices or budget decisions

• medication assistance

• privacy and information sharing

• hospital transfer

• the use of restrictive practices

• whether the person can remain safely at home

• whether the participant should change providers.

The correct response depends on the type of decision.

What should happen first?

Ask the provider to arrange a care conference involving, where appropriate:

• the participant

• the attorney or appointed decision-maker

• the care partner

• a senior provider representative

• a nurse or relevant clinician

• the participant’s GP or allied health professional

• an independent advocate.

The meeting should clarify:

1. What decision needs to be made?

2. Can the participant make that decision with appropriate support?

3. What are the participant’s known wishes and preferences?

4. What authority does the attorney’s document provide?

5. What risks is the provider concerned about?

6. Are there less restrictive or safer alternatives?

7. What outcome can be agreed and documented?

Ask for the provider’s position, risk assessment and proposed options in writing.

Can the attorney require the provider to deliver any requested service?

No.

Even where the attorney has authority, they cannot require the provider to:

• deliver a service outside the approved Support at Home service list

• use funding for something not included in the person’s approval

• direct workers to act outside their qualifications

• provide care the provider believes is unsafe or unlawful

• ignore clinical standards

• make false or improper claims against the participant’s budget.

The provider remains responsible for the safety, quality and legality of its services.

However, the provider should explain its reasons clearly and consider reasonable alternatives. It should not dismiss the attorney with a vague reference to “policy.”

Can the provider ignore the attorney?

Not where the attorney has active legal authority over the decision and the participant cannot make that decision themselves.

The provider should verify the documents, record the attorney’s authority and involve them appropriately.

However, an attorney must generally act within the scope of the appointment and in accordance with the participant’s rights, will and preferences. They should not simply impose their own personal preference because they believe it is more convenient.

A registered supporter without separate legal authority can help the participant make and communicate decisions, but cannot make decisions for them.

What if the disagreement concerns safety?

The provider should explain:

• the specific risk

• the evidence supporting that concern

• what alternatives have been considered

• what could make the proposed arrangement safer

• whether clinical advice is required

• whether the care plan or Support at Home support plan needs review.

For example, if an attorney insists that the participant be left alone overnight but the provider believes this presents an immediate risk, the provider may refuse to deliver an unsafe arrangement.

It should still help identify alternatives, such as:

• additional support

• assistive technology

• overnight respite

• a clinical assessment

• family involvement

• a Support Plan Review

• another provider with different capabilities.

What if the dispute involves restraint or medication?

Additional safeguards apply.

Chemical, physical, mechanical or environmental restraint cannot be used merely because an attorney or family member requests it. Restrictive practices must be a last resort and require the relevant assessment, legal authority, consent and monitoring.

Similarly, an attorney cannot direct a support worker to give extra medication or change a clinical treatment plan without appropriate medical authorisation.

Ask for an independent advocate

An independent aged care advocate can:

• explain the participant’s rights

• help clarify the attorney’s role

• attend meetings

• help the parties focus on the participant’s wishes

• assist with a formal complaint

• refer the matter for legal advice where authority is disputed.

Contact OPAN’s Aged Care Advocacy Line on 1800 700 600. The service is free, independent and confidential.

How can the matter be escalated?

Where the dispute cannot be resolved:

• use the provider’s formal complaints process

• contact the Aged Care Quality and Safety Commission on 1800 951 822 if the concern involves provider conduct, safety, rights or service quality

• contact My Aged Care on 1800 200 422 if the dispute concerns My Aged Care records, supporter registration, approved services or changing providers

• obtain legal advice if the scope or conduct of the attorney is disputed

• apply to the relevant state or territory tribunal if a formal decision about guardianship, attorney authority or substitute decision-making is required.

In Victoria, disputes about enduring powers of attorney or guardianship may ultimately require advice from the Office of the Public Advocate, a lawyer or an application to VCAT.

What if the attorney may not be acting in the person’s interests?

Warning signs include an attorney who:

• ignores the participant’s expressed wishes

• prevents them speaking privately with workers or advocates

• uses their money improperly

• refuses necessary care for financial reasons

• pressures them into a particular provider or arrangement

• seeks access to information outside their authority

• makes decisions that primarily benefit the attorney.

Raise concerns with an independent advocate and obtain legal advice. Serious financial abuse, coercion or immediate danger may also need to be reported to police or the relevant state safeguarding service.

What should I do next?

Confirm the details with My Aged Care or the relevant provider, write down your questions and ask for important information in writing before making a decision.

Helpful Local Home Help resources

• Start with Liz

• Find your home care style

• How to choose a home help provider

• Find home care providers