Martha was concerned about her mother May as she was becoming forgetful and no longer called people by name.

May also seemed unwilling to deal with paying her invoices, and had trouble moving around so she did not want to go do her own shopping or make trips to the bank to check her account.

Martha, concerned that her mother possibly had dementia, and wanting to help her mother out with her day to day life (shopping, arranging payment of invoices from her account etc), wondered about getting signing authority on her mother’s account so that she could make payments for her mother and buy groceries without seeking reimbursement from her mother.

She discussed the problems and her thoughts with a friend who had had similar issues with her father recently ,and her friend warned that if May did have dementia, Martha would not be able to make decisions about May’s care and where she lived unless Martha was May’s attorney.

The friend told May that Martha should go to her lawyer and create Enduring Powers of Attorney, like her father had done, so that Martha can take over and manage things for her. 

May took Martha to see Martha’s lawyer, but once May told the lawyer that she was worried that her mother may have dementia the lawyer told her they could take instructions now but could not prepare, and witness her mother signing, the documents until the lawyer was sure that her mother did have capacity.

If you are concerned about a family member’s capacity, and are looking to put in place Enduring Powers of Attorney (so that someone can legally make decisions for them if they do lose capacity), it is important to know the legal requirements around assessing capacity and putting these documents in place. For more information on Enduring Powers of Attorney please see our article here.

If there are concerns that your loved one lacks capacity, the first step is to obtain a medical certificate from a health practitioner who is authorised to make assessments of mental capacity. A health practitioner will determine that someone is mentally incapable if that person lacks the capacity to:

1. make decision about a matter relating to their property or their personal care and welfare; or
2. understand the nature of decisions about matters relating to their property or their personal care and welfare; or
3. foresee the consequences of decisions about matters relating to their property or their personal care and welfare or of any failure to make such decisions; or
4. communicate decisions about matters relating to their property or their personal care and welfare.

If an individual has capacity

If the health practitioner certifies that the individual has capacity and is capable of creating Enduring Powers of Attorney, then a lawyer can assist the individual with drafting and signing these documents. This is when an individual gives someone else the power to deal with decisions regarding their personal care and welfare, or property matters while they have capacity.

The Enduring Power of Attorney for personal care and welfare will only come into effect once the individual has lost capacity, while the individual can elect whether their Enduring Power of Attorney for property comes into effect immediately, or only when they lose capacity.

A health practitioner will again need to assess an individual’s capacity before an attorney can make decisions or take any action under an Enduring Power of Attorney.

If an individual does not have capacity

If the health practitioner finds that the individual lacks capacity then an application will need to be made to the Family Court for a Welfare Guardian and Property Manager to be appointed.

It is not necessary for a lawyer to be engaged in order to make the application; it can be completed by any family member or individual.

Property Manager

More than one person can be appointed as a Property Manager. If there is more than one Property Manager, the managers will have a joint responsibility unless the Court decides otherwise. The Court also has the power to appoint a trustee company as a Property Manager.

The Property Manager must be aged 20 years or older. They must be capable of carrying out the duties of a Property Manager and acting in the best interests of the individual who needs assistance.

Specialist lawyers will meet with the person the Order is about. The lawyer will inform the Judge on why the application is made and what should happen. Before making an Order, the Court may decide to hold a short hearing or request further medical evidence.

Property Orders will be reviewed every three years. On review, a Court can extend, change, or end the Order.

The Court will also review whether the person the Order is made for can understand the nature of the decisions made for them, and whether the appointed person is still the best person to carry out the duties required of them.

For major transactions, such as dealing with a asset over a particular value, the Property Manager usually has to make another application to the Court.

Welfare Guardian

A Welfare Guardian must also be over the age of 20, be able to carry out the duties of a welfare guardian (this involves making decisions about the person’s care and living arrangements), and must not have a conflict of interest with the person the order is made for. The Court will always try to find out who the person wants as a Welfare Guardian.

The procedure for making an application for a Welfare Guardian Order is similar to that of a Property Manager Order.

The above processes can sometimes be tricky and complicated for family members trying to help a loved one who is losing capacity. It can also be onerous for family members to keep accounting to, and making applications to, the Court. It therefore pays to obtain legal advice from a legal practitioner as early as possible to discuss your options.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.