What are your Rights?
Ageing, Mental Health and the
Your Rights in the Future –
Enduring Power of Attorney,
Enduring Guardianship, Wills
Assoc/Prof Carmelle Peisah
What will we address in this talk?
What sort of decisions do I need to make?
What can effect these decisions?
Why bother planning?
What sort of decisions do I need to
What documents will enact these
Why bother planning: what are the
consequences of not planning ?
Forward thinking - why bother?
Peace of mind
Avoids future conflict
Avoids future uncertainty
Can have a say in who is
appointed to make
decisions on my behalf
(who I trust, who is
sensible etc, who knows
me and what I would want)
Challenges: this might happen
United States District Court
Case NO. sa cv 01-97 DOC
VICKIE LYN MARSHALL,
Guardianship Tribunal NSW
Gov’t tribunal - under
Guardianship Act 1987
hear & determine
applications for appt of
guardians & fin.
managers of adults with
when no informal proxy
No need to fear….
Alzheimer Europe’s recommendations on
guardianship- Sept 2008
Guardians should be obliged to take into consideration the wishes of the person with
This should include previously expressed wishes (as reported in advance directive or
made known by significant others).
The person with dementia should be kept informed of and consulted on decisions
being made on his/her behalf even when deemed mentally incapable.
It should be obligatory for the person with incapacity to be heard by the judge or
People with dementia should be involved in the choice of guardian or
enduring/springing power of attorney.
Presumption of legal capacity unless proven otherwise
Incapacity should not be based solely on age or diagnosis of dementia
No unnecessary restriction of legal capacity
No automatic loss of legal rights
Appointment of guardian only if necessary
The appropriate measures should be taken to ensure and maintain discretion and
respect for the privacy and human dignity of the adult with incapacity at all times.
Guardianship measures and actions must be in interests of person with dementia.
Management of financial assets should be for current benefit of the person with
How do others make decisions: The
principles of decision making by proxies
Works best when the proxy
knows the person’s wishes
Assert the principle of
authority of the former self to
govern the welfare of the later self
What is a
A decision maker
One way of planning for your own
future is to appoint an enduring
An enduring guardian is someone you
legally appoint to make personal or
lifestyle decisions for you when you are
not capable of doing this for yourself. You
choose which decisions you want your
enduring guardian to make. These are
called functions. You can direct your
enduring guardian on how to carry out the
What kind of decisions can an
enduring guardian make?
You can give your enduring guardian as many or
as few functions as you like.
The appointment form has a list of functions and
you can delete the functions you do not want
your EG to have and add others if you wish.
You may give the EG directions about how to
exercise the decision making functions you give
them. eg direct your EG to consult with a
particular close friend before making a decision.
If your EG has a health care function, they will
be able to access your medical records to help
make decisions for you.
When does an enduring
guardianship appointment start?
The appointment of your EG takes effect
only if you become unable to make your
own personal or lifestyle decisions.
Your EG may wish to seek the opinion of a
Dr about your capacity to make decisions
before acting on your behalf.
GUARDIANS APPOINTED BY
THE GUARDIANSHIP TRIBUNAL
Guardianship Act 1987 (NSW)
PERSON “IN NEED” OF A GUARDIAN
(a person for whom a guardian could
be appointed) IS PERSON WHO
BECAUSE OF A DISABILITY
TOTALLY OR PARTIALLY
INCAPABLE OF MANAGING HIS OR
A person who has a disability is
a person who is:-
1 (a) intellectually, physically,
psychologically or sensorily disabled
(b) of advanced age
(c) a mentally ill person within meaning of
Ch 3 Mental Health Act
(d) otherwise disabled
2. And who by virtue of that fact is RESTRICTED
IN 1 OR MORE MAJOR LIFE ACTIVITIES to
such an extent that he or she requires
SUPERVISION or social habilitation
What about money?
What is a Power of Attorney?
You can give your attorney the power to make
any decision or do anything about your finances
or property which you could do yourself.
These broad powers include selling, buying or
leasing property (such as your house), making
investments, accessing cash (including bank
accounts) and buying or selling shares.
You can control the power you give to the
attorney by placing limits or conditions in the
enduring power of attorney. E.g. you can give
the attorney limited authority to do specific tasks,
such as paying regular bills but not selling
property. If you wish to limit your attorney's
powers you should seek legal advice about the
best way to do this.
When does POA start?
You can choose
You may want it to start immediately after you
appoint the attorney or at some future date.
When you make an enduring POA, you should
make it clear when you want it to start. If you do
not make this clear, then the enduring POA will
start when the attorney accepts the appointment
by signing the enduring power of attorney.
to be my attorney(s).
My attorney(s) may exercise the authority conferred on my attorney/s by Part 2 of the Powers
of Attorney Act 2003 to do on my behalf anything I may lawfully authorise an attorney to do.
My attorney’s/attorneys’ authority is subject to any additional details specified in Part 2 of
Prescribed Power of Attorney
Note: Cross out this clause if you want this form to operate only as a general power of attorney.
Do not cross out this clause if you want this form to operate as an enduring power of attorney.
An enduring power of attorney must have a completed witness certificate (see page 3).
PART 1 GENERAL
This power of attorney is made on the day of 20
By (the “principal”)
Clause 1 Attorney(s)
Clause 2 Continuation of power of attorney if loss of mental capacity
I give this power of attorney with the intention that it will continue to be effective if I lack
capacity through loss of mental capacity after its execution.
This power of attorney operates:
• when my attorney accepts (or as each of my attorneys accept) the appointment
on and from up to and including
• when my attorney considers that I need assistance managing my affairs
• other (give details above)
If no option is selected or the options chosen are unclear or inconsistent, I intend that the power
of attorney will operate immediately or, if Clause 2 is not crossed out, when my attorney accepts,
or as each of my attorneys accept, the appointment.
Clause 4 Appointment of more than one attorney
If I appoint more than one attorney, then I appoint them jointly and severally
OR If I appoint more than one attorney, then I appoint them jointly
ORIf I appoint more than one attorney, then I appoint them severally.
PART 2 ADDITIONAL POWERS AND RESTRICTIONS
Clause 5 Gifts
I authorise my attorney to give reasonable gifts as provided by section 11 (2) of the Powers of
Attorney Act 2003.
Clause 6 Conferring benefits on the attorney
I authorise my attorney to confer benefits on the attorney to meet the attorney’s reasonable
living and medical expenses as provided by section 12 (2) of the Powers of Attorney Act 2003.
Clause 7 Conferring benefits on third parties
I authorise my attorney to confer benefits on
to meet their reasonable living and medical expenses as provided by section 13 (2) of the
Powers of Attorney Act 2003.
(insert date) (insert date)
Note: Cross out and initial the options below that you do not want to apply. If you include Clause 2, the
power of attorney will not operate to confer any authority on an attorney until the attorney accepts
the power of attorney by signing this form.
Does a person need all their
marbles to make a POA?
What level of capacity does
someone need to make a valid
enduring power of attorney?
To make a valid enduring power of attorney, the
person making it must have mental capacity
when they sign the document.
must be capable of understanding the nature
and effect of the enduring power of attorney.
They must be capable of understanding the
range of decisions which the attorney can make
on their behalf. They should also understand
that the attorney can make decisions without
What happens if they don’t have
their marbles anymore
Appointments made by the
Grounds for making financial
Person incapable of managing affairs
There is a NEED for another person to
manage those affairs on person’s behalf
It is in person’s BEST INTERESTS that
the order be made
Wills, how can I prevent problems?
Knowing what is testamentary capacity
Lawyer taking good notes
Certifying capacity when appropriate
Weighing and evaluating: marriage, kids,
No doing drive-by-wills
Wills: what do I need to know?
What a will is
What do I have
Who could I/should I benefit
Can I weigh and discriminate
Do I have any symptoms of mental
disorder such as delusions or