Estate Planning NSW: Creating A Will When Capacity is in Doubt?

October 15, 2021

There are many ways to approach estate planning. For some, it can be a difficult topic to breach. But with the right approach, it can be a comfortable and even enjoyable experience. Estate planning is one of those things that every person will have to do at least once in their lives – everyone needs a will. But what if one hasn’t been set up? What if your loved one is getting on in years and their affairs aren’t in order? This can make things a bit more difficult as the reality of their passing seems to be closer. The trauma of estate planning for someone else can be made even worse when it comes to questions regarding a person’s mental capacity. Here is what you need to know when estate planning in NSW, creating a will when your loved one mental capacity is in doubt.

The first thing you need to know is the legal definition of capacity in NSW. Unfortunately, there’s no single standard definition for capacity, instead, the definition of capacity depends on the type of decision being made in each case. So, there may be a number of legal tests to determine the person’s capacity. For instance, the person may have the capacity to make small decisions, like what to buy when grocery shopping, but they might not have the capacity needed to make larger, more complicated financial decisions. It’s important to note that just because a person may be found to lack the capacity to make one decision, it doesn’t mean that they don’t have the capacity to make decisions in other areas, e.g. they can’t manage their financial affairs, but they can write a will.

If you need a definition for capacity to help you decide, the basics of capacity come down to three points:

  1. Can they understand the facts to do with the decision-making and main choices?
  2. Can they understand the consequences of those decisions and how they’ll affect them?
  3. Can they communicate their decision?

If you answered yes to any of these questions then it’s a good idea to talk to a solicitor before making any more decisions. There are, of course, other things you can look out for to tell you that the person doesn’t have the capacity to make the decision they need to, or at least that it might be a good idea to run through those legal tests.

When it comes to capacity being in doubt, just because a person doesn’t have capacity one day, it doesn’t mean they won’t the next. The human brain is a very strange organ, and we still don’t understand it, but these are a few alarm bells for you to look out for if you’re worried about a person’s capacity:

  1. Difficulty with recalling information or experiences memory loss
  2. Difficulty communicating
  3. Struggles when moving from one topic to another
  4. Problems with basic calculations, when they’ve previously been able to do them
  5. Disoriented or confused
  6. A sense of change, i.e. their personal appearance or mood is drastically different from how it used to be (‘She always dressed immaculately, but now she looks quite slobbyâ?)

If you’ve noticed any of these problems, it may be best to consult a solicitor or even a doctor.

It’s an awful feeling to find out that someone you know and care about is found to no longer have the capacity to make decisions about their affairs, but they aren’t set adrift in the sea of the legal system. When a person is found to lack capacity, the Supreme Court or Guardianship Tribunal can appoint a person to make decisions on behalf of the person. Of course, this is the last resort, and you should pursue all other avenues of help before this one.

However, as our society becomes more aged, we’re having to realise that it’ll be our sons and daughters who’ll look after our affairs when we no longer can. This may not be the case in every instance, but it’s becoming increasingly common. The important thing to remember when the question of an appointed guardian to make financial decisions is raised is to consider who (it doesn’t just have to be one) has the person’s best interests at heart, as well as the common sense to make strong financial decisions.

If you are experiencing these issues with one of your loved ones make sure that they are getting the professional medical help they need as well as the professional legal help. For more information or to discuss your situation with our award-winning team please contact us today.

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