Estate Planning NSW: When Capacity is in Doubt? | CM Law Blog

October 11, 2013

No one likes having to do any form of estate planning – it’s all just a little too depressing and death-focused for it to be a comfortable experience, let alone enjoyable. But it’s one of those things that every person in Sydney’s Inner West will have to do at least once in their lives – everyone needs a will. The trauma of estate planning can be made even worse when it comes to questions regarding a person’s mental capacity to understand what they’re actually doing. So what do you need to know if you think a family member’s mental capacity is in doubt in regards to their affairs?

Estate planning

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 really 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 a 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.

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