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Wanting to know, is it legal to invite an 86 yo to dinner…

Customer Question
Wanting to know, is...

Wanting to know, is it legal to invite an 86 yo to dinner and then spring a capacity assessment whilst the person has no independent representation present, where the adult children interpret or promt answers?

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

Victoria

Lawyer's Assistant: What steps have you taken so far?

I have only just found out this was done to my mum without her knowledge and I was excluded from knowing or attending. Im 1 of 4 adult children.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Im not certain.

Submitted: 1 month ago.Category: Australia Law
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Answered in 7 hours by:
3/22/2018
Solicitor: John Melis, Lawyer replied 1 month ago
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 2,414
Experience: Principal Lawyer at Legal AU Pty Ltd
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Hi, my name is***** solicitor in Melbourne. Thank you for using Just Answer, and I will answer your question today, and ask various questions to narrow the issues in your post raised.

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Solicitor: John Melis, Lawyer replied 1 month ago

when a assessment of capacity is to be carried out, it can occur at a dinner party, but there will need to be two medical professionals of the required profession to be present to confirm and ask the relevant questions in relation to capacity.

following this procedure will avoid the capacity if the individual being contested at a later date.

If you need any further information please let know.

You can come back to this post any time to ask questions and there will be no further charges to you.

Don’t forget to rate me 5 stars as this supports me helping the community, and thank you for using Just Answer.

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Customer reply replied 29 days ago
This answer in not satisfactory. Since reading your response I have reservations as to the legality of an in home assessment with people who have a vested interest in the outcome being a certain way. The fact that thise same people interpreted or prompted answers is also a matter. The person had no independent representative. Therefore I conclude your answer was far too vague.
Solicitor: John Melis, Lawyer replied 29 days ago

an in home assessment can be done and it is legal, as long as there are two medical professional of independence that are present that can carry out the required tests.

in home assessments are regularly done with elderly people to make it comfortable or that person.

it is a proper legal process and the law supports the same.

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Solicitor: John Melis, Lawyer replied 29 days ago

as i mentioned in my first post, the main element to is to have the two medical professionals due to the age of the person. These medical professional can be a local doctor, which one of these doctors must have known the person for a minimum of 6 months.

the children can ask the questions, there is no issue on this point. The medical professional needs to witness the reply to determine capacity.

I hope this answer your question on this matter. The law is very clear as to the requirement of medical professionals to attest to mental capacity.

If you need any further information please let know.

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Customer reply replied 29 days ago
Well as far as we can ascertain, there is still no consent sought, nor was there S professional that knew the person in question other than 2 of 4 Adult children.. Asking the questions us not the issue, it is whether they prompted or interpreted the questions without bias. Remembering they have a vested interest in deeming the person incapable.
Solicitor: John Melis, Lawyer replied 29 days ago

on the basis of your recent comments, in this instant deemed capacity for changes in legal documents, will be invalid on the basis that the mental capacity was not attested to correctly in proper procedure.

I have extended a special offer to talk on the phone, please look, it will help you if needed.

You can come back to this post any time to ask questions and there will be no further charges to you.

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