Grey Power November 2015

NATIONAL GREYPOWER MAGAZINE » NOVEMBER 2015 13
If you are ‘mentally capable’ of making a
Will then you have ‘testamentary capacity’
For clarification, please read this article.
When you make or revoke a legal document, e.g. a
will or enduring power of attorney, you have to be
mentally capable at the time of signing, otherwise the
document will not be valid.
What does “mentally
capable”
mean, for the
purposes of making a
Will or relating to enduring
powers of attorney?
Capacity to make a
Will
If you are mentally
capable of making a Will
you are said to have testamentary
capacity.
At the time of signing
the Will you must be of
sound mind, memory
and understanding,
i.e. you must understand
the nature of the document
you are signing,
be free of any condition
causing a loss of reason
and judgement, and
know and approve the
contents of the Will, both
with regard to knowing
the extent of the property
you are disposing of and
how your property will
be divided between the
people who will benefit
under the Will.
When you talk to your
lawyer to give instructions
for preparing your
Will and when you sign
the Will, your lawyer
will need to be satisfied
that you have testamentary
capacity, that your
instructions are freely
given and that you understand
the effect of the
Will.
Just because a client
is elderly, has a degree
of mental impairment, or
demonstrates some unusual
behavioural traits,
the lawyer cannot assume
that that client lacks testamentary
capacity.
If your lawyer has concerns
about your testamentary
capacity, he or
she is entitled to make
further inquiries, e.g. by
consulting an appropriate
medical professional,
before preparing the Will
and having you sign it.
Capacity and Enduring
Powers of Attorney
If you are the person
who makes an Enduring
Power of Attorney
(“EPA”) you are called
the “donor”.
As for Wills, it is the
capacity of the donor to
grant and revoke the EPA
at the time of signing the
document, which is relevant.
EPAs differ from ordinary
powers of attorney
because they continue to
be effective and are not
automatically revoked if
the donor becomes mentally
incapable.
In relation to property
you, as donor, are
mentally incapable if you
are not wholly competent
to manage your
own affairs in relation to
your property.
In relation to personal
care and welfare,
you are mentally incapable
if you lack capacity to:
• make decisions in
relation to your personal
care and welfare;
and
• understand the nature
of decisions
about your personal
care and welfare; and
• foresee the consequences
of decisions
about your personal
care and welfare; and
• communicate decisions
about your personal
care and welfare.
If your EPA is designed
to come into effect
only if you become
mentally incapable, the
assessment of mental capacity
must be made by a
professional health practitioner
who is qualified
to make the assessment;
this is not something
your lawyer or other lay
person can determine.
If you want to cancel
(revoke) one or both of
your EPAs, you must also
have the mental capacity
to revoke. This means
that you must be able to
understand the nature
and effect of the revocation,
but you don’t necessarily
have to have the
competence to manage
your property or affairs,
or the capacity to make
decisions regarding your
personal care and welfare.
The problem with this
is that, if you do revoke
your EPAs, but lack the
capacity to make new
ones, someone else may
have to apply to the Court
for orders to be appointed
to be your property
manager and/or welfare
guardian in place of the
EPAs which have been
revoked.
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Do be aware that if you
are a trustee of a trust and
become mentally incapable,
your attorney under
an enduring power of attorney
cannot sign documents
for you as a trustee.
An EPA in relation to
property is not a deed of
delegation of the powers
of a trustee.
If it is not possible
to remove or replace an
incapacitated trustee under
the terms of the trust
or the Trustee Act 1956,
then it is necessary to
apply to the Court for orders
to remove or replace
an incapable trustee, or
to transfer land.
Denis & Ruth Ryan
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Denis & Ruth Ryan
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Devonport Auckland 0624
New Zealand
Denis & Ruth Ryan
86b Ngataringa Road
Devonport Auckland 0624
New Zealand
Denis & Ruth Ryan
86b Ngataringa Road
Devonport Auckland 0624
New Zealand
Denis & Ruth Ryan
86b Ngataringa Road
Devonport Auckland 0624
New Zealand
Denis & Ruth Ryan
86b Ngataringa Road
Devonport Auckland 0624
New Zealand
Denis & Ruth Ryan
86b Ngataringa Road
Devonport Auckland 0624
New Zealand
Denis & Ruth Ryan
86b Ngataringa Road
Devonport Auckland 0624
New Zealand
Denis & Ruth Ryan
86b Ngataringa Road
Devonport Auckland 0624
New Zealand
If you are an elderly
trustee of a trust, it may
be wise for you to retire
to avoid the possibility of
a difficult situation arising
if you become mentally
incapable.
Concluding comments
It isn’t a pleasant
thought to contemplate
the possibility of loss
of one’s mental capacity,
but it is an issue you
should not ignore as you
age.
Make sure that you
have made your Will
and have enduring powers
of attorney in place
while you are mentally
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capable, to avoid the
possibility of having
their validity challenged
on the grounds that you
lacked capacity when you
signed them.
If you are a trustee of
a trust, be aware of the
possible implications
for the trust if you lose
your capacity while still
a trustee.
Your lawyer can advise
you in relation to
these matters and help
with preparation of any
documents you may need
to ensure that your affairs
are in order in the
event that you lose your
mental capacity.
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New Zealand
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