Capacity refers to your ability to consider and understand the decisions you are making and their consequences. When drafting and signing your estate documents, to have capacity, you must be able to understand the nature and terms of the documents, appreciate the effect of the documents and communicate your choices to your solicitor.<\/p>\n\n\n\n
For estate planning, in determining capacity, you must be able to satisfy the solicitor that you have testamentary capacity. This means that you can understand and describe your asset pool, what you own, your family \u2013 who may have a potential claim to your estate \u2013 and why you have chosen to include certain people as your trustee, executor and beneficiaries. Testamentary capacity also requires you to be able to demonstrate that you are not under the influence or coercion of others when making the will.<\/p>\n\n\n\n
Too often, we see clients bury their heads in the sand following a diagnosis, namely, conditions that may have commenced impact on cognitive functioning. The diagnosis per se will not limit capacity, rather, the nature and extent of the impact of the condition must be determined.<\/p>\n\n\n\n
Why is capacity important? In NSW, it is presumed that a person has capacity unless proven otherwise. However, disability, illness or age\u2013related cognitive disability may impact your capacity. If your solicitor or family and friends have doubts about capacity an assessment may be required.<\/p>\n\n\n\n What to do next? What happens if the Doctor determines that capacity is not satisfactory? The latter process is undeniably more stressful, time\u2013consuming and costly. However, the Bilson Law team have years of experience and will guide you each step of the way.<\/p>\n\n\n\n Jacqui, Principal Solicitor at Bilson Law, is happy to answer any questions. Would you like Jacqui to present an information session to your community group? Phone 4339 0999 or email info@bilsonlaw.com.au for more information.<\/p>\n","protected":false},"excerpt":{"rendered":"Capacity refers to your ability to consider and understand the decisions you are making and their consequences. When drafting and signing your estate documents, to have capacity, you must be…","protected":false},"author":1,"featured_media":7656,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"content-type":"","om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"_lmt_disableupdate":"","_lmt_disable":"","episode_type":"audio","audio_file":"","cover_image":"","cover_image_id":"","duration":"","filesize":"","date_recorded":"","explicit":"","block":"","filesize_raw":"","footnotes":""},"categories":[37,77],"tags":[],"series":[115],"class_list":["post-7654","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-health-wellbeing","category-retirement","series-coffee-with-a-coastie"],"episode_featured_image":"https:\/\/onthecoastpublications.com.au\/onthecoastover55\/wp-content\/uploads\/sites\/3\/2024\/04\/over-55s-image_morning-circle_Berkeley-Vale_Talk-on-Powers-of-Attorney.jpg","episode_player_image":"https:\/\/onthecoastpublications.com.au\/onthecoastover55\/wp-content\/plugins\/seriously-simple-podcasting\/assets\/images\/no-album-art.png","download_link":"","player_link":"","audio_player":false,"episode_data":{"playerMode":"dark","subscribeUrls":{"apple_podcasts":{"key":"apple_podcasts","url":"","label":"Apple Podcasts","class":"apple_podcasts","icon":"apple-podcasts.png"},"stitcher":{"key":"stitcher","url":"","label":"Stitcher","class":"stitcher","icon":"stitcher.png"},"google_podcasts":{"key":"google_podcasts","url":"","label":"Google Podcasts","class":"google_podcasts","icon":"google-podcasts.png"},"spotify":{"key":"spotify","url":"","label":"Spotify","class":"spotify","icon":"spotify.png"}},"rssFeedUrl":"https:\/\/onthecoastpublications.com.au\/onthecoastover55\/feed\/podcast\/coffee-with-a-coastie","embedCode":"
<\/strong>Capacity is important as your estate documents must reflect your wishes and be your own free will. A Court may hold that your will or Power of Attorney is invalid if it is found that you lacked capacity when drafting the documents. If your will is found to be invalid, your estate may not be distributed in accordance with your wishes, but rather the laws of intestacy. Proper estate planning is crucial to protect your assets and prevent your assets from being misused or distributed against your wishes.<\/p>\n\n\n\n
<\/strong>Book an appointment with a solicitor urgently. If there are any capacity concerns, please let the solicitor know what the concern is, and, importantly, the nature and extent of the impact of the capacity\u2013related concerns. The solicitor will then send a formal request to the appropriate doctor or specialist to undertake a capacity assessment. If the doctor approves the capacity assessment, the solicitor will proceed with the preparation of any required documents.<\/p>\n\n\n\n
<\/strong>An application can be made to the NCAT Guardianship Division (ie, the Tribunal) for a Guardianship Order and\/or a Financial Management Order. Orders can be made for a loved one to make decisions or for the NSW Trustee & Guardian to be appointed.<\/p>\n\n\n\nDon’t Let Illness or Age Affect Your Estate Plans: Importance of Capacity<\/a><\/blockquote>