How Can You Help a Loved One Who is Losing Capacity?

As people get older or encounter difficulties with their health, they can find managing their affairs and performing essential day-to-day tasks more challenging.

In these situations, it’s only natural that family members will want to help however they can, including assistance with paying accounts, buying groceries, or making decisions about their care and welfare.

Obtaining the necessary authority to do this is not a quick and straightforward process. If someone begins to lose the capacity to make decisions for themselves, no one automatically has the right to make decisions for them. There are a number of different legal contingencies in place to protect and assist individuals who may be losing capacity. It’s important to know all your options so you can make the right choice for the particular circumstances of your loved one.

The first step will usually be to have Enduring Powers of Attorney (EPAs) prepared, which will allow you to legally make decisions for your loved one if they do lose capacity. It is important to note that EPAs can only be granted with the informed consent of the respective individual and this requires them to have mental capacity at the time they sign the EPAs. For this reason, we recommend that EPA documents are signed well before any mental capacity issues arise.

If you fear that someone is losing capacity, the first step is to obtain a medical certificate from a health practitioner who is authorised to make assessments regarding mental capacity. A person who is mentally incapable or is losing capacity may lack the ability to make, understand or foresee the consequences of matters relating to their property or their personal care and welfare.

If the health practitioner certifies that the individual has capacity to grant EPAs, a lawyer can draft the necessary documents and arrange for them to be signed. If the practitioner finds that the individual lacks capacity, then the next available option is to apply to the Family Court for the appointment of a Welfare Guardian and/or Property Manager.

A Property Manager takes charge of any decisions relating to the person’s assets. They must be aged 20 years or older and be capable of carrying out the duties of a Property Manager and be willing to act in the best interests of the individual who needs assistance. More than one can be appointed, in which case they will have joint responsibility. A statutory trustee company can also be appointed Property Manager.

A Welfare Guardian takes charge of making decisions about a person’s care and living arrangements. They must also be over 20 and be able to carry out the duties of a Welfare Guardian in the best interests of the individual and must not have a conflict of interest with the person the order is made for. The Court will always try and ascertain who the person wants to be their Property Manager and/or Guardian.

The process for seeking legal authority to act on behalf of someone losing capacity can be onerous and complicated. It is therefore important to obtain advice from a qualified and experienced lawyer as early as possible. If you would like any advice or assistance regarding Enduring Powers of Attorney please contact us.