Assessing Capacity for Powers of Attorney
If an attorney is acting on behalf of a person who has lost capacity, it is important to ensure that he or she is has an Enduring Power of Attorney. A General Power of Attorney ceases to have effect if the principal (the person who gave the Power of Attorney) does not have the capacity to make his or her own decisions. If a person has only given a General Power of Attorney but has lost capacity and needs assistance with financial decision-making, you can make an application to the Guardianship Tribunal for a Financial Management Order. You can contact the Tribunal on 02 9556 7600, toll free 1800 463 928 or go to their website at www.gt.nsw.gov.au.
There are people in the community who have existing disabilities which mean that they lack capacity to grant Powers of Attorney. However, the person with the disability or, commonly, their family members, would like to be able to plan ahead. If there is a clear need for someone else to assist in making financial decisions for the person, an application can be made to the Guardianship Tribunal to make a Financial Management Order, appointing another person or NSW Trustee and Guardian as the person’s financial manager.
You can also refer parents of a child with a disability to the guidebook Planning for the future.