My loved one has lost capacity. How can I help legally manage their affairs?

When a loved one becomes legally incapacitated, it is a distressing time for them and for us. In such cases, often legal, financial, medical and lifestyle decisions are unable to be made by them, and we are left to try to manage their affairs. In this blog, we explain what loss of mental capacity is, the implications of it, and options open to us.

What is loss of mental capacity?

When a person loses their mental capacity, they are generally considered no longer fit to look after their own health, safety and welfare.  Causes of mental incapacity can include:

1. Intellectual disability
2. Mental illness
3. Brain damage
4. Conditions such as dementia
5. Being physically unable to communicate wishes, eg. being in a coma.

The implications

For this reason, it is important that each of us prepare an Enduring Power of Attorney and an Advance Care Directive document giving another person or persons of our choosing authority to make legal and financial and/or medical and lifestyle decisions on our behalf in the event that we lose capacity.

If a person loses capacity without having prepared an Enduring Power of Attorney or Advance Care Directive document, Applications can be made to the South Australian Civil and Administrative Appeals Tribunal (SACAT) for an Order of Administration and or Guardianship.

Administration Orders

An Administration Order is where SACAT authorises another person to make financial decisions on behalf of the incapacitated person. An Administrator will ordinarily have authority to make decisions concerning the management of money, legal and business affairs. An Administration Order will be reviewed every three years by SACAT to see if there is still a need for it to be in place.

Where an application for an Administration Orders is made, SACAT will usually look to appoint someone who knows the person well and is well placed to take on this role. However, where there is no such person or there is dispute over who that person should be, the SACAT can also appoint:

• the Public Trustee,
• an Accountant or Lawyer where appropriate, or
• a trustee company.

If the Public Trustee is appointed as administrator no other administrator can be appointed.

An administrator has no authority to make lifestyle, accommodation and medical treatment decisions for the person – that is the role of a guardian.

Guardianship Orders

Application for a Guardianship Order is often made alongside an Application for Administration. An appointed guardian will have the authority to make decisions regarding the health, lifestyle and medical concerns of the person.

An application for a guardianship order can be made by:

• the person who the application is about
• the Public Advocate (a public official who oversees guardianship, similar to the Public Trustee)
• an administrator of the person’s estate including the Public Trustee
• a ‘person responsible’ for the person as defined in the Guardianship and Administration Act 1993
• any person who can satisfy SACAT that they have a proper interest in the welfare of the person who the application is about.

In most cases, SACAT prefers to appoint a family member, friend, or someone who knows the person well and is interested and able to take on the role of Guardian. However, if there is no suitable family member or friend, SACAT can appoint the Public Advocate.

Both Administration Orders and Guardianship Orders are usually ongoing orders and remains in place until another order is made by SACAT, with the exception that they must be reviewed at least every three years to see if the orders should still be in place or if any changes are needed.

Get in touch!

If you require assistance applying for Administration an Guardianship Orders, or alternatively, if you want to ensure that in the event of your incapacity a person that you trust of your choosing is able to make decisions on your behalf, get in contact with TGB’s caring and experienced Wills and Estates team.

Find out more information about our Wills & Estates services, get in touch with us here, or give us a call on (08) 8212 1077.