Bowen Buchbinder Vilensky

Mental Incapacity A Matter Of Degree

The Australian, November 2012

We can all sometimes be forgetful, slow off the mark or fail to detect a problem which is blindingly apparent to those around us. With age, these challenges can become more common – as the many thousands of baby boomer Australians currently sailing into retirement are well aware.

But at what point, from a legal point of view, are you considered unable to manage your own financial affairs or make your own lifestyle choices? At what point do you legally lack the mental capacity to control your own destiny? Is it possible for a wife, child or care-giver to bundle you off to a nursing home without your consent? 

The occasional, lapse of memory is not of itself a sufficient reason for your capacity to be challenged. Even after a medical examination and the formal diagnosis of Alzheimers or dementia or other degenerative brain function, the question of loss of capacity is still more a question of degree than a simple black or white diagnosis. 

Many people are surprised to discover that someone who has been diagnosed with a degenerative condition can still sort out their legal affairs effectively - provided they take the right steps. Those steps can vary, depending on the degree of loss of capacity, from the disarmingly simple to the very complex . 

For example, in the early stages of loss of capacity, the lawyer taking instructions may find that their file notes about a person’s ability to understand their own assets and beneficiaries are sufficient to prove capacity. If a person writes their own Will without the benefit of legal assistance, no such notes exist, and difficulties will likely arise in proving the person had capacity. 

Establishing capacity becomes very much more complex in advanced stages of Alzheimers, when a person may have only occasional lucid days or even lucid moments. Even so, a strategy can be put in place to combat this difficulty, which I have used with success previously. 

This involves finding the pattern of the person to target what days or times their routine shows they have better capacity or lucidity, and taking instructions only then. This process is backed up by having a doctor present to swear a statutory declaration as to the person’s capacity at that particular time and supplementary statutory declarations of the lawyer who drafted the Will and its witnesses. 

The process also involves the person being given various mental tests to assess their capacity, and the person is also subjected to often probing questions to objectively establish the degree of competence on that day and at that time. The key to such a strategy is knowing that a person can still have lucid moments and making sure their instructions are captured at the right moment and the whole process objectively documented. This strategy of course is very hard to do with urgency, is much, much more labour intensive, and has the ever present spectre of possible undue pressure from relatives of the person weighing in and trying to effect what the Will should say. For these reasons it is also more expensive and time consuming. 

A perhaps obvious conclusion to draw is simply this: put in place the right legal instruments, sooner rather than later, and you can face old age and whatever it may bring with the greatest safety and peace of mind. 

Morgan Solomon is Director of Bowen Buchbinder Vilensky