Losing capacity – don’t leave it too late

You never know if or when you might lose capacity, that is, lose the ability to manage your affairs. For example, you could be in a serious accident, you could suffer a stroke, or you could develop dementia. You might lose capacity temporarily or permanently.

Having enduring powers of attorney in place allows one or more persons (called your attorney) to act on your behalf if you have lost capacity. Your attorney is someone you have chosen yourself, someone you trust, who will act in your best interests and carry out your wishes.

If you have lost capacity and have not previously made enduring powers of attorney your family will need to apply to the Victorian Civil and Administrative Tribunal (VCAT) to have someone appointed as your administrator and guardian. This involves increased costs, delays and there is a risk that the preferred people may not be appointed. There is also the risk that a trustee company may be appointed instead of a family member or close friend.

It is just as important that you make a will while you have capacity. You cannot make a will or update an existing will if you have lost capacity.

If you want to make a will or enduring power of attorney but your capacity is in question, you should seek the opinion of a doctor to assess your capacity.

Even if you have already made a will and enduring powers of attorney don’t forget to review those documents every so often to make sure that they are up to date.

No one wants to think about losing capacity or death. But failure to plan for the such events can cause additional stress and problems for your family and loved ones. Estate planning is crucial. You should make a will and enduring powers of attorney while you are of sound mind and in good health. The lesson is don’t leave it too late!

Justin Hartnett
Principal
T 5225 5220
M 0419 571 840
E jhartnett@ha.legal

or

Daniela Pavlovic
Special Counsel
T 5225 5227
M 0417 014 455
E dpavlovic@ha.legal