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. We live near each other in Sydney. If he is incapable of making decisions or managing his own affairs, what are my options?
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 your father has lost capacity would typically be made by a Neuropsychologist, a Geriatrician or a psychiatrist.
If it is determined that your father has lost legal capacity, he will be unable to grant you an Enduring Power of Attorney. If your father is diagnosed as having lost legal capacity and you do not have an Enduring Power of Attorney, you will be unable to make financial decisions on his behalf.
Once your father 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, nor allow you to sign the application for admission on behalf of your father.
You would need to make an application to the NSW Civil and Administrative Tribunal (NCAT) for a Financial Management Order (FMO) to obtain control over his financial affairs. 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.
Once an FMO is granted, you should be able to manage your father’s financial affairs. You need to be aware that NCAT can be appointed as a co-financial manager under a Financial Management Order. This would mean that financial and legal decisions would need to be passed and approved by NCAT on an ongoing basis.
You also need to be aware that Financial Management Orders do 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 your father’s guardian to make personal, medical and lifestyle decisions.
Having to apply to NCAT (or any other Government body if you reside outside of NSW) for Guardianship or financial management may cause considerable inconvenience and delays in managing your father’s affairs and his care needs.
If your father 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 to review your father’s will to ensure the will is up to date and reflects his wishes. Typical examples of issues with an out of date will include executors who are dead, bequests for assets that no longer exist and beneficiaries who may be dead or unknown to the executor. Whether your father is happy with his current will or not, locating a copy of the will may be a good start.