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Legal > Aged Care & Elder Law

Capacity Concerns:

Overview FAQs Articles Locations

Legal capacity is the term used to describe the ability of a person to provide instructions to a solicitor and their capacity to understand the effect of such instructions. 

At the time a person seeks to sign legal documents, such as a Will, Power of Attorney or Enduring Guardianship, they must understand the effect of the document such as when it will operate, what limitations it will impose and what powers it will provide to another person.  

The issue of capacity is assessed by a solicitor prior to a document being executed. Factors that may affect a client's legal capacity includes the use of certain medications, medical conditions, psychiatric conditions and substance abuse. If there are any capacity concerns the execution of the legal document/s cannot proceed.   

If a person is precluded from executing documents such as a Power of Attorney or an Enduring Guardianship because of diminished legal capacity, an application can be made by another person to the Guardianship Division of NCAT. In this application orders can be sought for the appointment of an attorney and/or enduring guardian.  

If the person with diminished legal capacity was intending to sign a will, an application can be made on their behalf seeking an order that the will be made or that a prior will be varied or revoked. 

 The validity of legal documents can be challenged if is established that the person who executed the document did not have the requisite legal capacity. Litigation in this area primarily arises from the execution of a will where legal proceedings are often brought by parties excluded under the current will or those who receive an inheritance that is less than other family members.  

 If you believe a legal document has been executed by a person with diminished legal capacity, or if you would like to get your legal affairs in order now while you are still mentally competent, you may wish to contact our office and arrange an appointment to see one of Aged Care & Elder Law Solicitors in our Sydney office. By appointment, we can also arrange a time for you to see one of our lawyers at a branch office. For a complete listing of our branches please see our "Locations" tab.

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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