Capacity Calisthenics

Capacity Calisthenics

As a lawyer, I hate to say, “I told you so”, but on this occasion I can’t resist – so here I go.

We recently came across an elderly man who, like many Australians, had the ‘she’ll be right mate’ ethos to life and its events. For example, neither he, nor his wife of 62 years, had ever completed an Enduring Power of Attorney (EPA), appointing each other as their Enduring Attorney to make decisions for each other if either of them lost their capacity. In fact, they lived in that semi catatonic state of avoidance and/or denial that some of you may be familiar with. I think they also subconsciously believed that, as they had been rusted on to each other for over 60 years and done everything together all that time, they would continue to do so in later life, including perhaps, losing their capacity together and even dying together.

As their late fate would have it, after a stroke in her mid 80’s, his wife lost her capacity to make financial decisions. However, at the time, there were some important decisions for her to make arising out of a significant bequest she was about to receive from the estate of a recently deceased relative in the UK. It was then that the family realised a little known but powerful and much ignored law applied – without having appointed her husband as her Enduring Attorney, he had no legal power to make any financial decisions for her, even though they were married to each other. To do so, he would have to apply to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed as her Administrator.

That was a regrettable and costly step for him to have to take although, in normal circumstances, he would have been appointed by QCAT. However, to show you how our “Ostrich’ mentality can really bite in later life, here is what happened:
•He applied to QCAT to be appointed his wife’s Administrator
•To be appointed, he had first to prove that his wife had lost her capacity and, second, that he was the appropriate person to be appointed
•It wasn’t difficult to prove the first issue but, unusually, the second one became the cause celebre in the case
•How was it conceivable that, in a happy marriage of 62 years, the husband would not be considered to be an appropriate person to make decisions for his wife? – Because one of their adult children objected to his father being appointed, not because he didn’t love and respect his father, but because he believed his father had also lost his capacity and could not, as a result, perform the role of decision maker for his mother
•Needless to say there was consternation in the broader family not to mention outrage from the father.

As it transpired, QCAT did have concerns about the father’s capacity and directed that he provide medical evidence that he did have capacity. He was unable to do so as the 3 doctors he consulted all declined to attest to his capacity.

The upshot?  The adult son who had raised the issue was then, remarkably, appointed by QCAT as the Administrator for his mum and his dad!

Life can be so unpredictable especially when you don’t plan and prepare for the predictable.

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Authored by: Brian Herd

Brian is a partner in the firm and has been a lawyer since 1983. He is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care. Brian has extensive experience in life planning for older people and the legal issues impacting on them including making Wills, administering estates, disputes over Wills, superannuation, social security, retirement villages and aged care, incapacity, the Guardianship Regime, the loss of a spouse or the ‘suddenly single syndrome’, planning for disabled children, elder abuse, enduring powers of attorney, advance health directives, family agreements and disputes and mediation. His expertise also extends to the structuring of business affairs and advising on the impact of the transfer of interests in family businesses including trusts and family companies. As a passionate believer in the crucial role of charitable and community organisations, he also spends a significant amount of his time advising the not for profit and community sectors on Board governance, restructuring and constitutional review, mergers and acquisitions, legal compliance and risk management especially in the aged care, retirement and disability sectors. Brian is a popular presenter in public forums on elder law issues and is also regularly invited to address the changing legal dynamics and needs of the aged care and disability sectors at industry conferences. In 2014, for the second year in a row, Brian was named one of Australia’s best lawyers in Retirement Villages and Senior Living Law. Qualifications, Memberships and Other Contributions: •Bachelor of Arts – University of Queensland •Bachelor of Laws (Hons) – University of Queensland •Deputy Chair – Queensland Law Society’s Elder Law Committee •Former part time member – Queensland Law Reform Commission •International member – National Academy of Elder Law Attorneys of America •Member – Queensland Law Society •Approved Facilitator for Corporate Governance – Aged Care Standards and Accreditation Agency •Member – QPAC Choir •Adjunct Lecturer – Griffith University

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