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 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  Works 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 OF A DISABILITY  BECAUSE  IS TOTALLY OR PARTIALLY 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