5.11 Plan your legal affairs and money

People in marriages and long-term relationships often divide roles and one person may take on the role of ‘money manager’. If this person has dementia and becomes unable to cope with finances, there can be significant problems. Banks and utility companies e.g. phone, electricity, and water will often only speak with the account holder. If that is not possible, sorting out problems with supply or bill payment can become very stressful.

Household accounts

Start to work through household accounts and bills as they come in over the next 12-months. You can telephone or email companies to find out procedures to ensure that you, the carer or the power of attorney can access accounts.

Power of Attorney

It is a good idea for us all to appoint a trusted person or people to assist or manage our financial and legal affairs if we become incapacitated. A person appointed to act in this role is called a power of attorney. Be aware there are two types of powers of attorney.

• A general power of attorney stops if the person loses mental capacity, so eventually will not be able to act on behalf of a person with dementia.
• An enduring power of attorney continues even if the person has lost mental capacity.

You can appoint a trusted family member or friend over the age of 18 who has a good track record with money management, whom you trust to act in your best interests and who is willing to accept the responsibility. Alternatively, your solicitor or an independent body such as the Public Trustee (available in each state and territory in Australia) can take on this role. You can appoint more than one person, either to act jointly (all must sign) or severally (any one person can sign). More information about powers of attorney in each Australian state or territory are available at Compass

Protect yourself and the person you support from financial abuse

Older people can be more vulnerable to financial abuse. This is because they often depend on others for help with financial tasks and decisions. If a person has dementia, the risk is even higher.

It’s important that other people, including businesses, salespeople, friends and other family members don’t pressure you or the person with dementia or try to influence your financial decisions.

See the Australian Government Money Smart webpage on financial abuse for the signs to watch out for and where you can get help.

Wills

A will gives instructions for how the estate of a deceased person should be distributed. A will is only legal if the person signing it understands the implications of the will. It is important that the person living with dementia has ‘capacity’ to sign a will. Capacity is a legal term that refers to a person’s ability to demonstrate that they understand the implications of the document they are signing.

Dementia will eventually affect decision making ability and, therefore, a person’s capacity to sign a will. For this reason, it is important to make, or update your wills as early as possible after diagnosis.

A will requires careful thought and consideration. Wills can be prepared by a solicitor, or you can use a ‘do-it-yourself’ kit from a newsagent or online source. However, be aware that if a ‘do-it-yourself’ will is made by a person with dementia and later challenged, it is harder to justify that the person with dementia had capacity when making the will. A solicitor formally assesses capacity and records that the person making the will had capacity at the time of signing.

A will requires careful thought. For example, what if you pre-deceased the person you support and the person’s dementia had progressed? You may wish to set up a trust to manage the ongoing care of the person with dementia. You might also name alternate executors and guardians to provide back-up if your first choice is unavailable.

For more information about making or updating a will, visit the Law Society of NSW or the Australian Seniors website or speak with a solicitor or the Public Trustee in your state or territory.

Note that superannuation is not automatically included in a will. You must make a Binding Death Benefit nomination with your super fund. Seek advice from your superannuation fund directly to ensure your superannuation is distributed according to your wishes.