Planning for the future as you age is a really important legal task. So is planning for your family’s future after you’re gone. These really important legal tasks are best carried out while you have full capacity and can work through them with your lawyer.
What happens when someone has already lost capacity?
The preferable course of action is to make an appointment and review your Estate Plan, including Powers of Attorney and Appointments of Enduring Guardianship.
However, if a person has already lost capacity and decisions about legal matters and finances need to be undertaken by a close relative or some other suitable person, then it is possible to seek orders to have that person appointed as the Financial Manager.
If decisions about health and lifestyle need to be made after a loved one has lost capacity, then it is possible to have a person appointed as a Guardian.
What about a Will?
Though the preferable course is to make a Will while you have capacity, if a person has lost capacity and the Court is satisfied the person’s wishes are known, then it is possible to have a Court made Will.
In a recent case of Small v Phillips (No 2)  the NSW Court of Appeal allowed an appeal brought by the grandson of a woman lacking testamentary capacity. The Court granted leave for a will to be made on her behalf. The Court found that a draft will which had been prepared prior to her loss of capacity was, or was reasonably likely to be, a will that would have been made by the grandmother if she had testamentary capacity and that it was appropriate for an order authorising such a will to be made.
If you take the time now to make an effective legally binding Will you can save your family not only stress but money in what will undoubtedly be a difficult time for them.
Carter O’Neill Legal’s Will and Estate Planning lawyers can help:
- Advise you in regard to estate and Probate laws
- Write a will that maximises the inheritance for your family
- Set up family and testamentary trusts
- Advise you in regard to choosing executors and guardians
- Minimise the chance that your will is contested and subject to litigation
- Advise in regard to estate tax (including capital gains) and financial concerns
- Safely store your will and other important legal documents
At the same time as considering your Will we strongly recommend that you also put in place plans for any future incapacity through Power of Attorney and Guardianship documents. This will ensure that if you somehow become unable to make decisions about your finances, your medical treatment or living arrangements then the person or persons who you trust to make these decisions can do so unhindered.