Hamilton Grey Power December 2017

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Legal capacity When you make or revoke a legal document, eg 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, ie 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 of which you are disposing and how your property will be divided between the beneficiaries. On instruction to prepare your will and when you sign it, your lawyer will need to be satisfied that you have testamentary capacity; your instructions are freely given and 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. Harkness Henry has a team of lawyers specializing in providing advice about family trusts, wills and enduring powers of attorney. Our specialist lawyers are committed to listening to you and understanding your needs. We want to use our expertise to help you achieve your goals. Whether you need a new will, want to appoint an attorney or are considering establishing a family trust, contact any member of our team for advice; we’re here to help. Matthew Peploe Partner Jillene Peters Associate Geraldine Austin Senior Associate 16 Hamilton greypower Magazine – December 2017 If your lawyer has concerns about your testamentary capacity, he or she is entitled to make further inquiries, eg by consulting an appropriate medical professional. 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. Neither your lawyer nor other lay person may determine this. If you want to cancel 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. 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. 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 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.
EBBETT HOLDEN NOT NEW BUT NEARLY SAVE THOUSANDS!! SEE PAGE 28 Delivering personalised care, with kindness and compassion. You could say we go above and beyond at Radius Glaisdale. But really, we’re just doing what we do best, which is providing the highest level of personalised support to each and every one of our residents. Our facilities are purpose-built for quality nursing, dementia, palliative and respite care, and our medical staff offers a warm, respectful, holistic approach to meeting the needs of the individual. Expert residential, nursing and dementia care Superb new facilities, inside and out Qualified and caring staff Wonderful location, strong community links On site dietician and chef, delicious home cooked meals Our focus: to encourage independence, protect dignity, celebrate individuality and welcome family and friends. To book a tour or find out more call Helen Somers, Facility Manager on ph 0800 737 2273 or visit our website at www.radiuscare.co.nz RC3027 Radius Glaisdale Rest Home, Hospital & Dementia Care 50 Hare Puke Drive, Flagstaff, Hamilton Hamilton greypower Magazine – December 2017 17
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Hamilton Grey Power December 2017

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