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Legal issues for people with dementia
As dementia progresses, a person’s ability to make legal and financial decisions decreases. In the later stages, when people with dementia are no longer capable of making decisions, carers, family, friends or a legally appointed person or organisation may take over their responsibilities.
However, while the person with dementia can still make decisions and participate in the discussion it’s important to plan ahead and receive legal and financial advice.
Carers should also get advice on planning their own financial and legal affairs to make sure that all eventualities are covered.
- Planning ahead
- Legal affairs
- Wills
- Power of attorney and enduring power of attorney
- Who can help?
- Money matters
- Support services
Planning ahead
Planning ahead requires both the person with dementia and the carer to:- have an up-to-date will
- have an enduring power of attorney
- be aware of guardianship requirements (in some states and territories), and
- discuss their financial affairs with a financial adviser.
Legal affairs
Laws vary between states and territories, so it’s important to contact a solicitor or the Guardianship Board in your state or territory for specific advice. However, below are a few comments on how families, carers and people with dementia can organise their legal affairs.Wills
A will gives instructions on how the estate of the deceased person should be distributed. Without one there is no guarantee that their wishes can be carried out, which may cause conflict and stress.Power of attorney and enduring power of attorney
A standard power of attorney is only valid up to the time the donor becomes mentally incapable, while an enduring power of attorney can continue up to the donor’s death.An enduring power of attorney is a legal document, so a doctor who specialises in old age may be required to certify that the person with dementia understands what is being signed (if the enduring power of attorney is signed after the diagnosis of dementia).
In some states and territories you can organise an enduring power of medical guardianship or an advance directive that allows you to define the medical treatment you wish to have or refuse should it become difficult for you to make these decisions later on.
Carers should also consider arranging an enduring power of attorney for themselves, to ensure that their affairs are well managed if they are also unable to make decisions, either for themselves or for the person they care for.
Who can help?
The public trustee, a solicitor or a law society can provide advice and assistance to make a will.A will is legal only when the person making the will understands what has been written, the extent of the property involved and the claims of dependants and other family members. Therefore it’s important that the person with dementia makes or updates their will while they’re considered capable of doing so.
In some states and territories there is guardianship legislation in place which, if needed, appoints either a public trustee, an organisation or a person to act on behalf of someone with dementia who has lost the ability to make their own decisions. The guardian appointed can help with information about financial consent and approve medical and dental treatment for the person with dementia.
If you have problems in dealing with the affairs of the person with dementia, or if there is conflict in the family about their best interests, you should contact your local carers association to discuss whether you might need the services of the guardianship authority in your state or territory.
Money matters
If a bank account is in joint names (either to sign), the partner of the person with dementia can continue to operate it without any change in arrangements. However, problems can occur if the person with dementia uses the account inappropriately or has accounts in their name only.To avoid these difficulties, the person with dementia can give authority, while legally competent, to another person to operate the account. Remember that this authority cannot be given if the person is no longer legally competent. If they are unwilling to agree to a change of arrangement it may be helpful to consult the bank manager about a possible solution.
Planning money matters ahead means having joint signatures on all bank, building society and credit union accounts, discussing financial affairs with a financial adviser and arranging how and when the person with dementia will access their finances.
You can get help to plan ahead from a bank manager, an accredited financial adviser, your family solicitor or a public advocate.
Support services
Consult:- your doctor or your local community health service
- the National Dementia Helpline, phone 1800 100 500
- Commonwealth Respite and Carelink Centre, phone 1800 052 222 during business hours or, for emergency respite support outside standard business hours, call 1800 059 059.
- the Aged Care Information Line, phone 1800 500 853.
