Call for all older people to have power of attorney set up before move to rest home care

Whether older people should be required by law to have an enduring power of attorney before being accepted into rest home care is one issue raised with the Law Commission in its review of the Adult Decision-Making Capacity Law. Photo / 123rf

Older people assessed as needing rest home care are increasingly being stranded in public hospitals for extended periods because without an enduring power of attorney, they are being refused entry to aged care.

The situation has been highlighted by Community Law Centres o Aotearoa as the Law Commission undertakes a review of New Zealand’s Adult Decision-Making Capacity Law.

It is one of a number of concerns raised by agencies about the way the current law enables substituted decision-making for older people, adults with intellectual disabilities and those in mental distress.

The Aged Care Association said public hospital “bed blocking” by older people due to bed shortages in rest homes was not new, but it was unaware of it being because of the need for an enduring power of attorney (EPOA).

In its submission to the Law Commission review, the association strongly recommended it be a legal requirement for a person to have a written EPOA arranged prior to admission to all levels of long-term aged residential care.

“We suggest that in the instance where there is no EPOA for urgent rest home or hospital-level admissions, agreement is made at time of admission to complete the process within three months,” the association said.

But both the Office for Seniors and Age Concern, while supportive of EPOAs to assist decision-making, said misuse of an EPOA was an issue.

They said one in 10 older New Zealanders would experience elder abuse, including financial exploitation and neglect.

The Aged Care Association said it had the right to decline admission to a patient needing secure dementia care if the person did not have an EPOA, but in practice, it did not do this.

However, Community Law Centres o Aotearoa (CLCA) chief executive Sue Moroney said it was happening, including to older people who did not lack capacity who were frequently being stranded in hospital because of it.

Community Law Centres o Aotearoa chief executive Sue Moroney said it's not right older people are being stranded in public hospitals because they don't have an enduring power of attorney. Photo / Natalie Akoorie

Moroney said its lawyers were increasingly helping families whose ailing elderly loved one had been admitted to hospital, where they were assessed as needing rest home care.

“They’re not there because their healthcare needs require them to be in an occupied hospital bed. They’re there for this technical and legal process to take place.”

She said setting up an EPOA was an important decision that should not be rushed.

“Our concern about what the rest homes are currently doing is that it puts an awful lot of pressure on a person to make a decision when they may not be ready to.”

As well, an EPOA costs between $800 and $1500 to have drawn up by a lawyer, and this was prohibitive for many, she said.

Moroney said making an EPOA authority should be free and consideration should be given to the cost to the public health system when a hospital bed was occupied unnecessarily.

The Aged Care Association said at present, dementia patients without an EPOA raised serious issues for rest homes because it caused delays with the resident receiving appropriate care services and payment delays to the facility which affected financial viability in a chronically underfunded sector.

“We have heard that, on occasion, our members will pay out of their own pocket for an EPOA to be organised for a resident in their care, because they consider that not doing so would represent a greater financial risk,” the association said in its submission.

“Others will support a next-of-kin through the Family Court process, which we hear is long, and many families find the amount of paperwork daunting.”

The Office for Seniors director Diane Turner said it would not support a legal requirement to have an EPOA prior to entering aged residential care.

“People may need to enter care quickly and unexpectedly, or may not have anyone in their lives who they wish to appoint as an attorney.

“There are also barriers to creating an EPOA, including the cost and the logistics of getting to a lawyer.”

Age Concern New Zealand elder abuse and neglect prevention educator Hanny Naus said its concerns with EPOAs included older people’s decisions being dismissed, lack of accountability by attorneys, and that action to remove an attorney through the Family Court was expensive and sometimes so delayed, the donor had already died.

The agencies supported an oversights or complaints body that could monitor or investigate actions taken under EPOAs, and having a central register of EPOAs to assist with transparency.

Chief Ombudsman Peter Boshier said there hadn't been the necessary urgency, resource or sustained focus needed to progress the fundamental right of supported decision-making.

In his submission, Chief Ombudsman Peter Boshier said the current laws were deficient, particularly for people in secure care, including those in mental distress, those with complex learning disabilities and people with dementia.

He said dementia patients whose attorney or welfare guardian agreed to secure care were effectively detained for the purposes of the United Nations Optional Protocol to the Convention Against Torture (Opcat).

“I consider it concerning that current adult decision-making capacity law allows for such a significant limit on fundamental rights, the right to liberty, without the relevant procedural and legal safeguards that such deprivation of liberty would usually entail,” Boshier wrote.

He said there was a lack of clarity in some secure aged care settings about where responsibility lies for verifying an EPOA or Welfare Guardianship order.

There was also confusion about the different types of EPOAs, misunderstanding about the requirements for activating one, and varying practice from doctors regarding the extent to which an assessment of a person’s decision-making capacity was completed and recorded.

Boshier warned that the current law under the Protection of Personal and Property Rights Act 1988 largely provided for substituted, rather than supported, decision-making.

He wanted to see substituted decision-making as an option of last resort.

“Measures must also be taken to prevent abuses, conflicts of interest or undue influence over the exercise of legal decision-making capacity.”

Law Commission Kaikōmihana [Commissioner] Geof Shirtcliffe said a second issues paper would be available for public consultation in October, with a final report expected next June.

Natalie Akoorie is the Open Justice deputy editor, based in Waikato and covering crime and justice nationally. Natalie first joined the Herald in 2011 and has been a journalist in New Zealand and overseas for 27 years, recently covering health, social issues, local government, and the regions.