Nsw Court Of Appeal Cases
CASE No.1 Croft v Sanders NSWCA 303
This case involved the deceased, Warwick Croft who signed a Will in September 2013. Mr Croft died in 2016 and was aged 85.
It was alleged by family members that Mr Croft had suffered dementia and hallucinations. He believed his daughters were running a brothel, someone had kidnapped his wife and a daughter was possessed by demons.
The medical evidence suggested the delusions or hallucinations were episodic rather than continuous and Mr Croft was not under delusions when he gave instructions to his solicitor to prepare his Will. Medical evidence found a mild underlying cognitive impairment.
Mr Croft saw a psychiatrist in April 2013 and he saw no sign of memory disturbance. However, other medical evidence disputed the psychiatrists findings.
Mr Croft saw Mr Miller, an experienced estate planning solicitor to fix his Will in 2013. Mr Miller said that it was his usual practise to obtain a letter from the clients treating doctor if a client had questionable capacity.
Mr Miller took detailed file notes of his attendance with Mr Croft.
Mr Miller was previously acquainted with Mr Croft as they had both attended the same local Church on a few occasions.
In August 2013, Mr Crofts son-in-law and other family members had lunch with Mr Croft and evidence was given to the Court that Mr Croft engaged in general discussion at the table and there was nothing unusual in his demeanour or behaviour.
The September 2013 Will was upheld and valid.
What Is The Mental Capacity Act
The Mental Capacity Act is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment.
Your doctor, social worker or other medical professional can help assess mental capacity.
If someone lacks capacity to make a decision, which needs to be made for them, the MCA states the decision must be in their best interests.
The MCA has a checklist to help decide whats in a persons best interests.
In order to grant power of attorney to someone to act on your behalf, make an advance decision and make a will, you must have mental capacity to do so.
This is why its important to put plans in place as soon as possible.
Generally People Are Considered Mentally Competent To Sign A Will If They:
- Understand the nature and extent of what they own.
- Remember who their relatives and descendants are.
- Are able to articulate who should inherit their property.
- Understand what a will is, and how it disposes of their assets.
- Understand how all these things relate to each other and come together to form a plan.
If theres any question about a persons competency, an attorney might take steps to determine competency and to prove that the person is legally able to make a will. For instance, a doctor or other witness might be asked to verify that the person is lucid enough to understand what he or she is doing.
If you or someone you know has more questions about dementia and its affect on Will planning in Massachusetts, please contact Attorney Kristina Vickstrom at 508-757-3800.
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Legal And Financial Planning For People With Dementia
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Many people are unprepared to deal with the legal and financial consequences of a serious illness such as Alzheimers disease or a related dementia. Legal and medical experts encourage people recently diagnosed with a serious illness particularly one that is expected to cause declining mental and physical health to examine and update their financial and health care arrangements as soon as possible. Basic legal and financial documents, such as a will, a living trust, and advance directives, are available to ensure that the persons late-stage or end-of-life health care and financial decisions are carried out.
A complication of diseases such as Alzheimers and related dementias is that the person may lack or gradually lose the ability to think clearly. This change affects his or her ability to make decisions and participate in legal and financial planning.
People with early-stage Alzheimers or a related dementia can often understand many aspects and consequences of legal decision-making. However, legal and medical experts say that many forms of planning can help the person and his or her family address current issues and plan for next steps, even if the person is diagnosed with later-stage dementia.
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May Someone With Dementia Sign A Will
Millions of people are affected by dementia, and unfortunately many of them do not have all their estate planning affairs in order before the symptoms start. If you or a loved one has dementia, it may not be too late to sign a will or other documents, but certain criteria must be met to ensure that the signer is mentally competent.
In order for a will to be valid, the person signing must have “testamentary capacity,” which means he or she must understand the implications of what is being signed. Simply because you have a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign a will.
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Generally, you are considered mentally competent to sign a will if the following criteria are met:
- You understand the nature and extent of your property, which means you know what you own and how much of it.
- You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.
- You understand what a will is and how it disposes of property.
- You understand how all these things relate to each other and come together to form a plan.
For more information about preventing a will contest, .
For more information about how to contest a will, .
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Legal Test For Capacity
The legal test for capacity is not the same as a medical test for capacity.
A person has testamentary capacity if at the time they gave instruction to a solicitor to draft a Will they:
- understood the nature of what a Will is,
- understood the extent of their assets, property and financial position in general terms,
- comprehended and appreciated who they ought to leave their estate to and
- had no disorder or delusion of the mind that would prevent or influence them disposing of their property in a way they would not have done if they had no disorder of the mind,
These four issues are outlined in the United Kingdom court case of Banks v Goodfellow , and continue to provide the benchmark for capacity for legal purposes and Will making today in New South Wales.
Advance Planning Advice For People With Dementia
Start discussions early. The rate of decline differs for each person with dementia, and his or her ability to be involved in planning will decline over time. People in the early stages of the disease may be able to understand the issues, but they may also be defensive, frustrated, and/or emotionally unable to deal with difficult questions. The person may even be in denial or not ready to face their diagnosis. This is normal. Be patient and seek outside help from a lawyer or geriatric care manager if needed. Remember that not all people are diagnosed at an early stage. Decision-making may already be difficult by the time the person with dementia is diagnosed.
Gather important papers. When an emergency arises or when the person with dementia can no longer manage their own affairs, family members or a proxy will need access to important papers, such as a living will or financial documents. To make sure the wishes of the person with dementia are followed, put important papers in a secure place and provide copies to family members or another trusted person. A lawyer can keep a set of the papers as well.
Review plans over time. Changes in personal situations such as a divorce, relocation, or death in the family and in state laws can affect how legal documents are prepared and maintained. Review plans regularly, and update documents as needed.
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Capacity To Make And Execute A Will
The mental ability to make and execute a will is called testamentary capacity. Wills often are challenged when it is suspected the testator the person who signed the will lacked testamentary capacity at the time .
Statutes and case law may vary among different jurisdictions, but testamentary capacity generally requires that the testator was aware of the following when signing the will:
- The extent and value of their property
- Those who are the natural beneficiaries of their estate
- The disposition he or she is making
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Capacity Requirements For Legal Documents
Mental capacity is a complex concept that is not necessarily black and white, especially when dementia is a factor. A senior with some form of cognitive decline may experience moments of lucidity during which they could be legally competent to sign a document like a will. Furthermore, different levels of mental capacity are required to execute different legal documents and ensure their validity.
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Lasting Power Of Attorney
A lasting power of attorney is a legal document that allows you to choose a person you trust to act on your behalf if you’re no longer able to make your own decisions.
This person is referred to as your attorney and must be over 18 years old.
You may think that if you’re married or in a civil partnership, your spouse would automatically be able to deal with your bank accounts and pensions, or make decisions about your care if you’re no longer able to.
But this isn’t true. Without an LPA, your spouse wouldn’t be able to act on your behalf.
An LPA can only be used after it’s been registered at the Office of the Public Guardian .
There are 2 types of LPA covering:
- property and financial affairs
- health and welfare
You can choose to do both LPAs at the same time, or just one. You can choose the same person to be your attorney for both. Or you can have different attorneys.
Can A Person With Cognitive Impairment Sign Legal Documents
When someone begins to exhibit signs of Alzheimers or dementia or perhaps even has a diagnosis of some type of cognitive impairment, they often turn to us wondering if its too late to prepare estate plans and get advanced directives in place.
To better understand what can and cannot be done, consider the following scenario:
In New York, a person does not need to have fully functioning mental capacity at all times, but must exhibit the various mental capacities discussed below when executing a will or the various advance directives. The standard level of mental capacity needed varies depending upon the advance directive that the person is executing.
The lowest level of capacity is testamentary capacity, which Mary will need to execute a will. To establish testamentary capacity, Mary must understand the nature of the act she is performing know the nature and extent of her property know the identity of those who are the natural objects of her bounty and understand the wills disposition of her property. Notably, there is no requirement that Mary be healthy. In fact, Mary does not even need to be competent at all times. She needs only a lucid interval of capacity to execute a will, which can even occur contemporaneously with an ongoing diagnosis of dementia, depression, incompetency, or even physical weakness.
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Tip: Get Permission For Caregiver Communication In Advance
Get permission in advance from the person with dementia to have his or her doctor and lawyer talk with a caregiver as needed. Advance permission can also be provided to others, such as Medicare or a credit card company, bank, or financial advisor. This can help with questions about care, a bill, or a health insurance claim. Without consent, the caregiver may not be able to get needed information.
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Sign Up To Our Public Interest Bulletins
The researchers also suggest the algorithm could help reduce the number of people who are falsely diagnosed with dementia.
Professor David Llewellyn, an Alan Turing fellow based at the University of Exeter, who oversaw the study, said: Were now able to teach computers to accurately predict who will go on to develop dementia within two years.
Were also excited to learn that our machine-learning approach was able to identify patients who may have been misdiagnosed.
This has the potential to reduce the guesswork in clinical practice and significantly improve the diagnostic pathway, helping families access the support they need as swiftly and as accurately as possible.
Between 2005 and 2015, one in 10 attendees at the memory clinic received a new diagnosis of dementia within two years of their visit.
The researchers also found for the first time that around 8% of the dementia diagnoses appeared to be made in error, as the diagnosis was subsequently reversed.
According to the study, published in JAMA Network Open and funded by Alzheimers Research UK, machine-learning models accurately identified more than 80% of these inconsistent diagnoses.
The research suggests AI can not only accurately predict who will be diagnosed with dementia, but has the potential to improve the accuracy of the diagnoses.
The researchers analysed data from people who attended a network of 30 National Alzheimers Coordinating Centre memory clinics in the US.
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Meet With A Massachusetts Elder Law And Life
As people age and their health becomes more precarious, ensuring that estate planning documents are in place is of critical importance. However, understanding how to navigate the process of creating a Last Will and Testament and other estate planning documents can be complex, especially if a testator is suffering from a condition that affects their mental capacity.
At the office of Patricia Bloom-McDonald, Attorney at Law, estate planning, elder law, and life-planning attorney, Patricia Bloom-McDonald can help you to understand your options for planning for the future, and what to do if a condition like dementia precludes you from signing a Last Will and Testament. For your initial one hour, no-cost consultation, please call her office or send her a message directly to get started.
Power Of Attorney Delegation Early Stage Dementia
Ideally, older adults should name their power of attorney and have the papers drawn up prior to any medical crisis, including a dementia diagnosis. However, if your loved one has not but already has a diagnosis of dementia, you can work together to name the power of attorney.
First, meet with an attorney. It is best if you work with an attorney who has extensive experience in elder law topics. This way, they can help you navigate the situation.
In general, a person with dementia can sign a power of attorney designation if they have the capacity to understand what the document is, what it does, and what they are approving. Most seniors living with early stage dementia are able to make this designation.
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Can A Person With Dementia Sign Legal Documents
The inability to sign documents is a factual issue. In order to know whether a person is competent to sign, say, a power of attorney or a will, one must know what understanding the signer had at the time.
Capacity or competence are tested a little differently depending on what documents the person is signing. The most highly-developed law of capacity, unsurprisingly, centers on the level of understanding required to sign a will. That standard is almost universally referred to as testamentary capacity. Although precedent for defining testamentary capacity goes back at least to mid-sixteenth century England, the standard is occasionally restated or reformulated.
Arizonas Supreme Court most recently reviewed testamentary capacity in 1973. In that case the Court described the woman who signed a will as:
94 years old at the time she executed her will. She had very poor eyesight and was deaf in one ear and partially deaf in the other. As a result of previously broken hips, she used a walker to move around. Evidence shows that she was forgetful and did not remember the names of her great grandchildren. She spilled food when she ate and went to the bathroom frequently. She had a short attention span and it was difficult for some people to talk with her.
The Court goes on to describe the three-part test for capacity to sign a will. A signer must have:
Proactively Complete Essential Legal Documents To Avoid Costly Problems
Mentally competent persons of at least 18 years of age should have a will, financial power of attorney, and health care power of attorney in place.
Its also a good idea to consider completing a living will.
This is vitally important to save family finances and ease the burden on those that have to undertake these duties for the disabled or deceased person, says Anderson.
A few simple documents can save an enormous amount of time, trouble and expense. The worst thing most people can do is to do nothing.
To learn how you can connect with affordable, local network attorneys and have 100% of attorney fees paid in full for legal matters like estate planning, visit ARAGlegal.com.
Limitations and exclusions apply. Insurance products are underwritten by ARAG Insurance Company of Des Moines, Iowa, GuideOne® Mutual Insurance Company of West Des Moines, Iowa or GuideOne Specialty Mutual Insurance Company of West Des Moines, Iowa. Service products are provided by ARAG Services, LLC. This material is for illustrative purposes only and is not a contract. For terms, benefits or exclusions, call 800-758-2860.
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