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