Attorney Wills

							   What are your Rights?
Ageing, Mental Health and the
            Law
 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
              make?
What documents will enact these
         decisions?
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
             E.PIERCE MARSHALL,
                     Plaintiff,
                v.
             VICKIE LYN MARSHALL,
                   Defendant.
Guardianship Tribunal NSW
    http://www.gt.nsw.gov.au/
 Gov’t tribunal - under
  Guardianship Act 1987
  NSW
 hear & determine
  applications for appt of
  guardians & fin.
  managers of adults with
  impaired decision
  making
 when no informal proxy
  decision-makers or
  conflict
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
    dementia
   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
    equivalent authority.
   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
    dementia.
How do others make decisions: The
principles of decision making by proxies

   Substituted judgement
               or
   Best interests
     Substituted judgment
 Works  best when the proxy
  knows the person’s wishes
 Assert the principle of
  PRECEDENT AUTONOMY:
  authority of the former self to
  govern the welfare of the later self
  What is a
  guardian?

A decision maker
    One way of planning for your own
     future is to appoint an enduring
                  guardian
   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
    functions.
    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
 IS
 INCAPABLE OF MANAGING HIS OR
 HER PERSON
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
   this document.
   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”)
   of
   (address)
   Clause 1 Attorney(s)
   (address)
   (Full name)
   (address)
   (address)
   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:
   • immediately
   • 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
   of
   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
    consulting them.
What happens if they don’t have
   their marbles anymore
   Appointments made by the
     Guardianship Tribunal
     Grounds for making financial
         management order
               s.25G

   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,
  separation/divorce/defactos making
  changes carefully
 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
  hallucinations
Summary