SCENARIO 3 - Planning for the future of a son with a mild intellectual disability
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Jason is a 22 year old musician who has a mild intellectual disability. Jason's most prized possession is his iPod and says his mother is his "biggest fan". He also has $20,000 in a bank account which was left to him by his grandmother. Jason is concerned about what will happen to his money and belongings when he dies.
Jason also has a degenerative disease and is worried about who will make decisions for him if he no longer has the capacity to make decisions himself about his health, lifestyle and accommodation. Jason loves his father and brother but would prefer those decisions to be made by his mother and sister as they know what he likes.
Possible advice for Jason:
Jason loves his family very much and doesn't want to appear to be choosing his mother and sister over this father and brother. But just because Jason prefers important decisions to be made by his mother and sister does not mean his father and brother can't be part of his planning process.
Jason could ask his mother or sister to organise a family meeting, in which everyone is involved, so that Jason can communicate his hopes and dreams for the future. The meeting could help to make Jason's father and brother feel involved in the planning process and give them the opportunity to show their support for Jason's wishes.
Jason can also visit a solicitor to ask about writing a Will for him to sign. A Will is a document which sets out what will happen to Jason's money and everything he owns in the event of his death.
Just because Jason has a mild intellectual disability does not mean he cannot make a Will, but he must have the "capacity" to make a Will. This means that Jason must be able to understand what he owns and what making a Will means. A solicitor can talk to Jason about this.
If it turns out that Jason cannot make a Will, there are rules which set out what will happen to what he owns when he dies. These rules (the "rules of intestacy") state that his money goes to his nearest relatives, depending on who is alive when Jason dies. The solicitor will explain to Jason what would happen in his case.
Jason can also talk to the solicitor about signing an Enduring Power of Attorney. An Enduring Power of Attorney is a document which Jason can use to appoint other people as his "attorneys" to make decisions for him when he is no longer able to make his own decisions. He could appoint his mother and his sister as his "attorneys", so long as his sister is at least 18 years of age. Jason can appoint them to make both personal (e.g. health) and financial decisions on his behalf.
Wills and Enduring Power of Attorneys are quite complex documents. The solicitor will need to be satisfied that Jason understands what he is doing (has "capacity") when signing them. With Jason having a degenerative condition, it is important that he visits a solicitor as soon as possible. Even if he has capacity now, as his condition develops, he might lose capacity in the future.
If Jason's degenerative condition worsens and he has not prepared a Will or an Enduring Power of Attorney, his family might wish to speak to a lawyer about the options open to them to plan for Jason's future.
Alternatively, his family might contact the Guardianship and Administration Tribunal, if his interests cannot be met in any other way. The Guardianship and Administration Tribunal could decide that Jason cannot make decisions about the money his grandmother left to him, and could appoint someone, in his family, to make financial decisions for him.
