Plan ahead to deal with the problems of dementia

IAN CONRAD is the principal at Conrad Law in Townsville, specialising in business and succession law

OVER 400,000 Australians live with dementia and it is the second leading cause of death in Australia. An estimated 26,000 Australians live with younger onset dementia. Most are living with their partner or family at home.

For those who have had the forethought to put in place an enduring power of attorney, the person they have nominated has the lawful power to look after their financial affairs and make legal decisions for them. For others, it is the Public Trustee who has the lawful responsibility to make financial decisions for them. However, in practice, the Public Trustee rarely intervenes in the arrangements that families come to, to manage the affairs of someone who has lost capacity to make decisions for themselves.

In the absence of an enduring power of attorney, the main practical problem that will arise for families looking after someone with dementia, is when a formal decision needs to be made – for example when their house needs to be sold or an insurance claim is made. Governments, banks and other institutions will not recognise private family arrangements unless formalised under an enduring power of attorney or appointment of a guardian. The Public Trustee may have to be brought in to resolve the situation, or an application made to the Queensland Civil and Administrative Tribunal ( QCAT) to appoint a guardian.

Once somebody loses capacity, they can no longer appoint an enduring attorney. It can take many months to obtain a guardianship order from QCAT and the process can give rise to disputes among family members. It is important therefore to plan ahead.