Occasionally forgetting things is a normal part of life and is nothing to worry about. However, if memory loss is starting to affect the everyday life of someone you care about, the best starting point is speak to your doctor or health professional. There are many reasons why people experience memory loss either temporarily or permanently and it is important to get a full medical picture.
If you are supporting someone who has been diagnosed with a condition that causes permanent memory loss, such as dementia, there are several things you can do to help. Planning ahead is a very important part of managing conditions that may cause permanent memory loss. A person with early dementia may still be able to complete a Will, Enduring Power of Attorney, Enduring Guardianship Appointment and an Advance Care Plan. It is important to seek advice from legal and health professionals to complete these processes while the person still has capacity.
If a person does not have the capacity to plan ahead, there are a few things you can do. For example, you can develop a plan of care, or set up a trust for the financial security of the person.
For more information, you can go to:
Advance Care Planning Australia has a number of resources to assist with planning for a person with dementia. Click here to access the resources.
If you have concerns about the welfare or financial situation of a person who has lost capacity, and decisions need to be made for that person, you can make an application to the Guardianship Division of the NSW Civil &Administrative Tribunal for a Guardianship or Financial Management Order, appointing someone to make decisions on behalf of the person.
For more information about memory loss and dementia, visit Alzheimer’s Australia NSW.
For information about supporting a carer of someone with dementia visit Care for a Carer.
Losing someone close to you is a sad and difficult time. Everyone responds to loss and grief in different ways, and many people experience physical and emotional reactions to loss for many months after a person has died.
To find more information about loss and grief, and practical information about what to do when someone dies, please refer to these links;
Department of Human Services – What to do following a death
Organ donation can help many sick and injured people, however, it can also be a difficult decision to make. If you have made a decision about organ donation it is important to talk to your family about your wishes. For more information about organ donation, go to the Donate Life website.
You may wish to plan your own funeral in advance, or you may be involved in planning a funeral for someone who has died. There are several things to consider, including costs, pre-paid funeral plans or bonds, choosing a burial or cremation, a religious or civil ceremony, and whether to advertise the service in newspapers.
For more information on planning funerals, visit NSW Fair Trading – Organising a Funeral
Healthcare professionals and residential aged care staff are often required to deal with the affairs of a person who has died without any identified family or close friends. An Enduring Guardianship and Powers of Attorney cease to have legal effect after a person has died. If a Will can be located, the executor of the Will can authorise payment of funeral arrangements and deal with the person’s property and effects.
If you cannot locate the person’s Will, the person is considered to have died ‘intestate’. For more information on intestacy, contact NSW Trustee & Guardian.
You could check if the Supreme Court of NSW, NSW Trustee & Guardian, the Registry of Births Deaths and Marriages or independent trustee companies have a record of the Will. If no Will can be found, you can make an application to the Supreme Court for a grant of Letters of Administration.
A person is said to have the mental capacity to make a decision when they can:
In NSW, the law assumes that everyone has the mental capacity to make their own decisions. However, sometimes a person may not have the capacity or ability to make decisions.
A person’s capacity to make decisions may be affected temporarily, for example because of illness or the effects of medication.
A person’s mental capacity may also be affected permanently because of conditions such as intellectual disability, dementia, or brain injury.
Capacity is decision specific, which means that the level of capacity required to make a decision will vary depending on the type of decision the person needs to make.
Although we start off assuming that everyone has capacity, sometimes a person’s behaviour might lead us to have doubts about their capacity. For example, a person no longer remembers the name of common objects, or constantly forgets the name of someone close to them.
It is important to explore the reasons why a person appears to have impaired capacity. Do not assume that because a person has memory problems or a disability that they lack capacity to make decisions. Also, a person may have an eccentric lifestyle or make personal decisions that we do not agree with, but this doesn’t mean that they do not have capacity.
When there is a question or disagreement about a person’s ability to make their own decisions, an assessment can provide evidence about the state of a person’s capacity. A capacity assessment could be made by a health professional. When assessing a person’s mental capacity it is important to remember that what is being assessed is their capacity to make a specific decision at that point in time.
You can request a copy of the Capacity Toolkit, from the Diversity Services Unit of the Department of Justice by calling 02 8688 8460 or download a copy of the Capacity Toolkit, and fact sheets in English and other languages.
If you are sick or injured and can’t make decisions about your medical or dental treatment, your doctor can ask someone else to make a decision for you. This person is known as the Person Responsible. You may have heard of the term ‘next of kin’, however this term is no longer used and a Person Responsible is not always a relative.
The Guardianship Act 1987 (NSW) states that the Person Responsible is:
There are some things your Person Responsible cannot do they cannot:
You can choose your Person Responsible by appointing an Enduring Guardian with the authority to make medical and dental decisions for you. You can go to the Enduring Guardian section of this website for more information about how to do this.
When appointing your Enduring Guardian, you can also talk to them about any health problems you have, and your wishes for future medical care. This is part of making a plan for your future health care. More information about this can be found in the Advance Care Planning section of this website.
Abuse of an older person happens when the person is harmed in some way. This could include physical, emotional or financial harm. Abuse can be obvious, such as hitting someone or yelling at them, or it can be harder to see, such as pressuring an older person to give money to a family member who is in financial trouble.
An older person may be abused by a close family member, friend or carer. Abuse can occur in any setting, such as the person’s own home, the community or a care facility. There is no typical pattern, and abusive relationships can happen in the ‘nicest of families’.
Older people can be more at risk of abuse if they:
If you are concerned that someone you know could be suffering elder abuse there are many services that can give you information and support. You can start by contacting your doctor, health professional or the NSW Ageing & Disability Commission for general information and advice on what to do.
There are many warning signs that an older person may be experiencing abuse. If you are worried about any of these signs, or if you have experienced them yourself, you can contact your doctor or health professional for help. Warning signs of possible abuse could include:
These warning signs are triggers for concern. However, there are many reasons why an older person might show these signs and it is important to find out more about the situation before deciding what to do. It is very important to talk to the older person, and to find out about their mental capacity to make decisions about their situation.
Talking to the person about their situation is an important first step. There are many services that can give you information and support if you are worried about an older person. You can start by contacting your doctor, health professional or the NSW Ageing & Disability Commission for general information and advice on what to do.
For more information on Elder Abuse, the Australian Human Rights Commission has a publication available – Your Rights at Retirement that includes a chapter Your right to be free of financial abuse.
For more information on Wills, please visit one of the links below:
Law Society – Finding a Solicitor in NSW
NSW Trustee & Guardian – Start your Will online
Legal Aid NSW – Information for Aboriginal people
The Australian Human Rights Commission also has a publication available – Your Rights at Retirement that includes a chapter Your right to plan your Will and other end of life decisions.
For more information on Powers of Attorney, please visit one of the links below:
The Guardianship Division – Enduring Power of Attorney
NSW Land Registry Services – Power of Attorney Fact sheet and Appointment Form
For more information on Enduring Guardianship, please visit one of the links below:
Guardianship Division NCAT – Fact Sheets
For information about supporting a carer visit careforacarer.nsw.gov.au
If you need help from an interpreter to contact any of the agencies listed on this website, please ring the free Telephone Interpreter Service (TIS) 131 450 and ask them to telephone the agency you wish to contact. You will need to give the Telephone Interpreter Service the phone number of the agency you want to call.
Diversity Services Unit
Provides information about Capacity.
Provides assistance in the following areas:
Phone: 02 9556 7600
Tollfree: 1800 463 928
TTY: 02 9556 7634
Postal address: Locked Bag 9, Balmain 2041
A free government telephone service that provides legal information, referrals and in some cases, advice for people who have a legal problem in NSW
Provides assistance in the following areas:
Phone: 1300 888 529
TTY: 1300 889 529
To speak with a trained professional about your concerns of an older person or adult with disability, or for information about available services:
Phone: 1800 628 221
Website: NSW Ageing & Disability Commission
Provides assistance with matters concerning Advance Care Planning.
Phone: 02 9391 9000
TTY: Deaf, hearing-impaired or speech-impaired customers can contact us through the National Relay Service:
Alternatively, Deaf TTY users can contact us directly on 02 9391 9900 or 61 2 9391 9900 (outside Australia).
Information and Support Team
Private Guardian Support Unit
Provides assistance in the following areas:
Provides assistance in the following areas:
Phone: 1300 364 103
Postal address: GPO Box 7 Sydney 2001
Advance Care Directive
An advance care planning document written by a person with capacity that is authorised by common law or by legislation. Laws vary across Australia, and in different Australian states and territories, an advance care directive can either:
In NSW, advance care directives are recognised at common law and the NSW Guardianship Act 1987 provides substitute decision makers through the ‘person responsible’ hierarchy and allows appointed Enduring Guardians to consent to end of life decisions.
Advance Care Planning
The process of developing future plans for a person’s health and personal care that respects their values, beliefs and preferences. Advance care planning involves discussion with health professionals, family and friends, and could include a written advance care directive.
Beneficiaries are those people or organisations such as charities or associations named in a Will who will receive benefit under a person’s Will. Beneficiaries may be legatees of gifts of money, personal or real property, life tenants or remainder beneficiaries of real estate, annuitants, or be entitled as residuary beneficiaries to the residue of the estate.
There is no specific legal definition or test of capacity in NSW. For planning ahead, different tests of capacity are required when making a Will, appointing an enduring guardian or giving a power of attorney. For more information on capacity, refer to the Capacity Toolkit.
Conditions and Limitations (Power of Attorney)
The Power of Attorney forms allow you to specify any conditions and limitations you wish to make to your attorney’s dealing with your property. Your attorney will be able to do anything with your property which you can do, except for things you write down as conditions or limitations.
Examples of conditions and limitations:
However, specifying conditions and limitation can be a problem if you become incapable. Your attorney may not be able to manage your property to look after your best interests and be forced to apply to the Guardianship Division, NSW Civil & Administrative Tribunal (NCAT) for the appointment of a financial manager. The Guardianship Division may appoint a person or organisation other than your choice of attorney.
If a person cannot understand these aspects or is unable to communicate their consent, the treating practitioner must seek substitute consent from the person responsible. The NSW Guardianship Act 1987 describes who can be person responsible and defines types of medical treatment.
Elder abuse includes behaviour that causes physical, psychological, financial or social harm to an older person. The abuse can occur within any relationship where the abuser is in a position of trust or is responsible for providing support to the older person.
An executor is the person appointed by the testator (the person making the Will) to carry out the terms of the Will. The duties of an executor include: obtaining a grant of probate; collecting in the estate assets; paying debts; and distributing the assets to the beneficiaries named in the Will.
Financial Management Order
An order made by the Guardianship Division, NSW Civil & Administrative Tribunal (NCAT) , Supreme Court or Mental Health Review Tribunal appointing a financial manager for a person with a disability. If there is no other suitable person available to act as financial manager, NSW Trustee & Guardian can be appointed.
The Guardianship Division, NSW Civil & Administrative Tribunal (NCAT) is a legal tribunal that can appoint guardians and financial managers, and consent to medical and dental treatment on behalf of people who lack capacity. The Guardianship Division can also review Enduring Guardianship appointments and Powers of Attorney.
An order made by the Guardianship Division appointing a guardian or guardians to make decisions in specific health and welfare areas for a person with a disability. Guardianship orders are time-limited and must be reviewed by the Guardianship Division when the time limit is reached.
You can appoint more than one Enduring Guardian. You can appoint your Enduring Guardians to act:
If one or more of your Enduring Guardians die, resign or become incapacitated, you can choose to have the remaining joint Enduring Guardian(s) continue. The Appointment of Enduring Guardianship form provides this option in Section 1c. If you do not choose this option, the Enduring Guardianship appointment will end automatically when one of the joint Enduring Guardians dies, resigns or becomes incapacitated.
You can also appoint an alternative Enduring Guardian who can act only if the original Enduring Guardian(s) dies, resigns or becomes incapacitated.
If you wish to appoint more than one Enduring Guardian think carefully about who these people should be. Ask yourself: will they get on together and work together for your interests above their own?
If you wish to appoint more than one attorney think carefully about who these people should be. Ask yourself: will they get on together and work together for your interests above their own?
An alternative term for an Advance Care Directive.
A person who is legally able to make medical and dental decisions on behalf of another person who lacks the capacity to give their own consent to treatment. The Guardianship Act 1987 defines the hierarchy of person responsible (in descending order):
(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,
(b) the spouse of the person, if any, if:
(i) the relationship between the person and the spouse is close and continuing, and
(ii) the spouse is not a person under guardianship,
(c) a person who has the care of the person,
(d) a close friend or relative of the person
This has a technical legal meaning. It means all forms of property other than real property; that is, all forms of property other than land and interests in land (excluding leaseholds which are classified as personal property). Examples of personal property include: money, shares, bank accounts, cars, boats, domestic pets, furniture, household items, personal effects including clothing, jewellery etc
Power of Attorney
A Power of Attorney is a legal document appointing a person or trustee organisation of your choice, to manage your financial and legal affairs while you are alive. This person or organisation is then known as your attorney.
An ordinary Power of Attorney will end when you lose mental capacity – it is useful for a short term appointment e.g. if you go overseas and need someone to look after your property in your absence or sign documents in your absence.
An enduring Power of Attorney will not end when you lose capacity. In fact, the main purpose of the enduring Power of Attorney is that it be put into operation or continue in operation if you become incapable of managing your property. An enduring Power of Attorney is made as a safeguard – just in case you suffer future mental incapacity due to an unforeseen accident or dementia. Because more people are living longer and have age related illnesses the enduring Power of Attorney is very popular.
Substitute decision maker
A substitute decision maker is a person who is appointed or identified by law to make decisions for an individual whose decision-making capacity is impaired. A substitute decision maker may be appointed by the individual (for example appointing an Enduring Guardian or making a Power of Attorney), appointed for the individual (for example a guardian appointed by the Guardianship Division), or identified as a substitute decision-maker for medical and dental treatment by the NSW Guardianship Act ‘person responsible’ hierarchy.
It is usual for a testator to appoint both an executor and trustee in their Will. Often the executor and trustee is the same person, although a testator may appoint different people to take on these roles. A trustee’s role is to administer any trusts. For example the Will may set up a testamentary trust and it is the role of the trustee to look after this trust. An example of a trust established by Will is where a testator provides that a gift is not to be given immediately to the beneficiary but held for their benefit for a specified period of years. The trustee’s role is to manage the property for the benefit of the beneficiary.
A Will is a legal document in which a person appoints an executor and trustee and expresses their wish as to what will happen to their property when they die. A Will only comes into effect upon the death of the person who made it. Anyone over the age of 18 with testamentary capacity can make a Will.
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