Assessment 1 - Graham assignment

SCHOOL OF LAW ASSIGNMENT COVER SHEET STUDENT DETAILS Student ID number: 17737630 Family name: Khatiz First name: Heela UNIT AND TUTORIAL DETAILS Unit name: Elder Law Unit number: 200632 Tutorial group: Tutorial day and time: Weekend Lecturer or Tutor name: Susan Field ASSIGNMENT DETAILS Title: Assignment 1 Length: 1782 Due date: 1/04/17 Date submitted to Turnitin: 27/03/17 Home campus (where you are enrolled): Parramatta DECLARATION I hold a copy of this assignment if the original is lost or damaged. I hereby certify that no part of this assignment or product has been copied from any o student's work or from any other source except where due acknowledgement is made the assignment. I hereby certify that no part of this assignment or product has been submitted by me in another (previous or current) assessment, except where appropriately referenced, and with prior permission from the Lecturer / Tutor / Unit Coordinator for this unit. No part of the assignment/product has been written/produced for me by any other person except where collaboration has been authorised by the Lecturer / Tutor /Unit Coordinator concerned. I am aware that this work will be reproduced and submitted to plagiarism detection software programs for the purpose of detecting possible plagiarism (which may reta copy on its database for future plagiarism checking). I declare that this hard copy is identical to the electronic copy of my assignment, whic submitted through Turnitin and acknowledge that where I have not complied with this requirement, then this in itself may be deemed to be an act of academic misconduct. I am aware that the date and word length will be calculated on the date of submission the copy submitted to Turnitin. Student's signature: HEELA KHATIZ Note: An examiner or lecturer / tutor has the right to not mark this assignment if the above 17737630 - Word Count: 1468 1

declaration has not been signed. File Note Subject Power of Attorney, Enduring Guardianship and Advanced Care Directi Author Heela Other participants N/A Date/time event took place 27 March 2017 5:30pm Date/time note written 27 March 2017 11:28pm Power of Attorney I informed Graham that he would be able to appoint anyone over the age of 18 of sound mind. 1 There are general and enduring powers of attorney. In order to find out which one Graham would like to proceed with, I asked the following questions: 1. Why do you want another person to manage your financial affairs? 2. Do you want this document to be effective immediately or only for a temporary period? Graham advised me that he would like his attorney to manage his financial affairs when he loses the mental capacity to do so. Therefore, I advised him that it would be beneficial to have an enduring power of attorney as this would come into affect when he loses mental capacity, 2 whereas a general power of attorney will terminate when Graham loses mental capacity and is only for short term purposes. 3 Grahams capacity will need to be tested in order to determine whether he has the appropriate capacity to appoint an attorney. I understand that Graham is a High Court judge and does not lack in knowledge and literacy however capacity is a task 1 Power of Attorney Act 2003 (NSW) 2 Power of Attorney Act 2003 (NSW) s 19 3 Department of Lands, Powers of Attorney in New South Wales (2005) Aged Care Assistance <http://agedcareassistance.com.au/data/documents/Power_ofAttorney_in_NSW.p df> 17737630 - Word Count: 1468 2

and decision specific. There is the common law test for the capacity of adults to make powers of attorney 4 as in Szozda v Szozda , which found that the capacity would vary depending on the complexity of the maker's affairs. Graham has a large number of property and other interests therefore it would be easier to find a lack of capacity than someone who may only have a house and bank account. 5 Graham must understand the nature of the transaction when it is explained. 6 . The nature of a general and enduring power of attorney was explained to him. I advised Graham that the enduring power of attorney will allow the attorney to undertake any function that would lawfully permit the attorney to do without first consulting Graham (the maker) beforehand. 7 Graham must ask himself, is it to his benefit and in his interest to allow another person to control his whole affairs and that person will act in the same way that he would? Also, is the person he chooses as an attorney someone trustworthy and responsible to deal with all of his affairs? 8 I informed Graham of the full meaning and significance of the power attorney he wishes to sign. When assessing capacity it is beneficial to assess the capacity of the person's overall mental function and health status, i.e. a overall assessment of Graham's mental and cognitive state and an assessment of his capability of making judgement, reasoning and planning. In addition to this, further assessments should be completed to ensure that Graham is appointing a specific power of attorney freely and without any influence. Enduring Guardianship 4 Nick O'Neil and Carmelle Peisah, 'Capacity and the Law' (2011) 1 Sydney University Press Law Books, 10.3.1 5 Szoda v Szoda [2010] NSWSC 804 6 Gibbons v Wright [1954] HCA 17 7 O'Neil and Peisah, above n 4, 10.3.1 8 Szoda v Szoda [2010] NSWSC 804 17737630 - Word Count: 1468 3