Wills and Estates
FC News Blog
Elder Law
“Elder Law” deals with a wide scope of matters including issues arising during the lifetime of an older person including their wills, Enduring Powers of Attorney, Advanced Health Directives, retirement planning, superannuation disputes and their capacity to manage their own financial and legal affairs.
The Ferguson Cannon Elder Law team is headed by director Byron Cannon and develops enduring and meaningful relationships with the elderly and their families to ensure that their legal obligations are upheld and their rights are protected. Talk to us today on 1800 640 509 or email byron@fclawyers.com.au for comprehensive advice.
Capacity
Capacity, or lack of it, is often the overriding problem when dealing with legal issues in the aged population.
The test of capacity for will making includes ensuring the will maker:
- understands the nature of a will and its effects;
- understands the extent of the property of which he/she is disposing;
- is able to comprehend and appreciate the claims to which he/she ought to give effect;
- that no disorder of the mind shall poison his/her affections, pervert his/her sense of right, or prevent the exercise of his/her natural faculties; and
- that no insane delusion shall influence his/her will in disposing of his/her property and bring about a disposal of it which, if the mind had been sound, would not have been made.
It is important to ensure a person has legal capacity when entering into any legal document. Importantly, when making a will or appointing a solicitor, particular consideration needs to be given to the persons physical and mental state.
It may be necessary to have a medical practitioner complete a formal capacity assessment at the time of giving instructions, as well as when signing important legal documents, to ensure there are no issues with capacity, and the documents are not invalid.
Enduring Power of Attorney
An ageing population and the breakdown of the traditional family are factors which have led to an increase in people acting to the financial detriment of the older person.
It is becoming increasingly important that you choose someone you trust when granting an Enduring Power of Attorney.
An Enduring Power of Attorney is a document giving another person the power to make personal and financial decisions on your behalf. An Enduring Power of Attorney continues if you lose the capacity to make the decisions yourself.
If you have any concerns about the scope of power given to the attorney, then it is possible to limit your attorney’s powers, for example, by limiting the appointment to specific duties, or by appointing two or more attorneys to act jointly when making any decisions.
Anyone who suspects that a power of attorney is not being applied properly can inform the Adult Guardian.
Ferguson Cannon Lawyers have the expertise to provide accurate advice in relation to all issues relating to Enduring Powers of Attorney
Adult Guardian & the Guardianship and Administration Tribunal
The role of the Adult Guardian is to protect the rights and interests of adults who are unable to make decisions for themselves.
The Adult Guardian may be appointed by the Guardianship and Administration Tribunal to act as the guardian of an adult in certain situations such as:
- when there is a need for a decision to be for an adult with no family, friends or service;
- where the adult has been abused, neglected or exploited
- where there is such serious conflict in the family about the decisions to be made for the adult that the tribunal decides that it is best for someone outside the family or supportive network to act as the adult’s guardian.
At Ferguson Cannon Lawyers we are experienced in providing advice regarding Elder Law and other related matters. We understand that these matters can be sensitive and we will take all care to ensure that your needs are met.
Please contact Byron Cannon, Director should you have any queries on 1800 640 509 or email byron@fclawyers.com.au.
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