Q: It is likely my father will be entering into an Aged Care facility in the next 12 months. He does not have an Enduring Power of Attorney in place, and he has been diagnosed with early-stage Dementia. What are my options if he cannot appoint me as his Enduring Power of Attorney?
A: This is a common scenario for many Australians regardless of their age. Not granting a trusted person to act as their attorney in the event of losing legal capacity can create some challenges.
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.
If it is determined that your father has lost legal capacity, then the opportunity to create an enduring power of attorney may have passed. It would be advisable to speak to a qualified solicitor who is an estate planning specialist as soon as possible.
Not having an Enduring Power of Attorney will not allow you to make financial decisions on his behalf. An Aged Care facility will not deal with you, nor allow you to sign the applications for your father to enter into care. If this matter needs to be addressed, and should you need to obtain control over his financial affairs, an application will need to be made to the NSW Civil and Administrative Tribunal (NCAT) via a Financial Management Order – click here.
The information on NCAT’s website outlines the application process and what you need to consider. Depending upon your circumstances the application process should be straightforward. However, you need to be aware that NCAT can be appointed as a co-financial manager under a Financial Management Order. This means major decisions must be passed and approved by NCAT along with annual disclosures agreed budgets.
You also need to be aware the Financial Management Order does not cover day-to-day lifestyle decisions. A separate application will need to be made to obtain Guardianship Orders. A Guardianship Order allows NCAT to appoint you as his guardian to make personal, medical and lifestyle decisions.
Having to apply to NCAT (or any other Government body if you reside outside of NSW) needs to be avoided by creating these important legal documents before a serious life event occurs. If you do not have these documents in place, then it is important to seek advice also as soon as possible.
So what is next?
Speak to a solicitor who is an estate planning expert. If your father has legal capacity, then constructing these important legal documents should be a matter of priority. Furthermore, whilst you are speaking to the solicitor, it might be timely to review your father’s Will, which may assist in avoiding adverse outcomes upon entry into an Aged Care Facility.