We should all plan for our future. Certainly, we should all have a current will, especially those of us who need to make special arrangements for the care of children or pets. Many of us would also benefit from making a formal arrangement to account for a time when we could find ourselves unable to make our own decisions. These arrangements have different names according to where you live in Australia, but they are alike in that they give authority to someone we trust to make decisions – whether financial or personal – in our best interests.
However, it is important to understand that these arrangements for the future can only be put in place while you have the necessary mental capacity. You cannot make a will or appoint an attorney or a guardian if you have lose capacity.
What Is the Presumption of Capacity?
You need legal capacity to make a will, or appointing an attorney or a guardian. “Capacity” requires the person making those documents to understand the nature and effects of making such documents, the relevant facts that he/she needs to take into considerations, his/her options and the consequences of exercising those options.
In Australia there is a basic legal presumption that every adult has the mental capacity to make legal decisions for themselves. (This contrasts with the presumption that children lack this capacity and cannot make important decisions without the input of their parents or guardians.) However, this presumption of mental capacity in adults can be rebutted if there is evidence that the adult does not have the necessary decision-making ability. An adult may not have mental capacity to make certain decisions due to a lifelong intellectual disability, an acquired brain injury, an age-related cognitive condition, or a mental illness.
How Do You Determine If Someone Has Capacity?
Unfortunately, it is not an easy task to determine if someone has mental capacity. However, there are some general principles that can assist when assessing a person’s capacity. For example, in the case of Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ outlined the requirements that a person must satisfied in order to have testamentary capacity to make a will.
What Capacity is Required?
An assessment of mental capacity is made on a case-by-case basis to determine whether the person has the capacity to make a will or appoint an attorney or a guardian. This assessment is often made by the solicitor drafting the documents and is usually based on expert advice from a medical report.
For instance, if someone approaches a solicitor to make a will, the solicitor starts by assuming that the person has the necessary capacity. If there is evidence to rebut this presumption (such as the person has difficulty understanding the purpose of a will when it is explained to them) then the solicitor may ask the person to obtain a medical assessment. This assessment will focus on the specific question: Does this person have the capacity to make a will?
What Can I Do for My Loved One?
If you suspect that your loved one is losing capacity, then it is important that you contact us immediately so that your loved one can make a will and/or appoint an attorney and/or a guardian while he/she still have the capacity to do so.
If you have a loved one who has lost capacity to manage their own affairs, and they do not have arrangements in place to have someone make a decision for them, then you will need to seek an order from the Tribunal in your state or territory to give you (or someone else) the authority to make decisions for them.
If you or someone you know wants more information or needs help or advice, please contact us on [email protected] or call 02 8005 6577 for a no-obligation discussion and for expert legal advice.