Dementia and the Law

Research that suggests a growing number of the population is suffering from dementia raises many concerns, with the amount of people over 85 years expected to increase by 35% over the next ten years. Dementia is an illness that causes the progressive decline in mental functioning, thus legally vital capacity is lost and this leads to the essential examination of the effectiveness of legislation in addressing the needs of dementia victims.

The presumption of capacity can be rebutted, by looking at triggers in behaviour that would alert to the fact that capacity was not present and is thus assessed on the ability to understand the nature of the transaction when explained. Evidently dementia presents many challenging issues and NSW legislation must concentrate on allowing people to plan ahead for when they are not able to make their own financial and health decisions. The options available to ensure their needs are met and requests are followed include Enduring Powers of Attorney, Enduring Guardianships, Advance Care Directives and Wills.

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