It is a frequent occurrence to be asked, or see this being asked online, in many different ways. We wanted to look into it.

Please note, for this blog/opinion piece, names and details are not provided, so as not to represent any specific person and / or family.

Disclaimer

This is not intended to be legal advice for your specific needs and you must seek your own professional advice, to determine what’s best in your subjective circumstances. We thank HNT Legal for their expertise and support with researching this.

Scenario:

"Hello, wondering if someone could point me in the direction of who would be best to contact for advice and support.

My family member is an adult with a disability. They are currently living with their Father, who is terminally ill and does not have much time left. Once their father passes away, they will need to go into share accommodation (which is being looked at now), with supports in place. They will inherit potentially around $120k+. My family member is very vulnerable and unable to manage their own money. Their sister looks out for them and is wanting to protect his money for him. We’re worried. Who would be best to see for advice?"

In the situation described, consulting with a lawyer who specializes in estate planning and disability would be highly beneficial for a person with a disability, their close family members and/or or friends.

Specifically, advice should be sought from a lawyer who can assist in drafting a Power of Attorney if the person has the legal capacity to make such an appointment. If not, a lawyer can assist in making an application for financial management orders via NCAT (New South Wales Civil and Administrative Tribunal).

In instances where the individual lacks legal capacity, this process involves legally appointing a person or an entity (such as a trustee) to manage the financial affairs on behalf of the person with a disability. Given their vulnerability and inability to manage their own money, this step is crucial to protect their interests and ensure that their finances are used wisely for their care and support.

A close family member or friend would likely be the best person to make the application for financial management orders on behalf of the person with a disability for several reasons:

1. Familiarity and Concern: they are familiar with the person's needs, preferences, and circumstances. This familiarity allows them to make decisions that are in the person's best interests and ensures that the management of finances aligns with their specific needs.

2. Personal Investment: Being genuine and looking out for the person's well-being, the close family member or friend is emotionally invested in ensuring that their inheritance is protected and used appropriately for their care and support.

3. Legal Capacity: The application process for financial management orders typically requires someone who has a personal interest in the person's welfare and who can demonstrate the ability to responsibly manage their financial affairs. A close family member or friend, given their relationship and concern for the person, can effectively fulfill this role.

Avoiding the NSW Public Trustee is often advised for several reasons:

1. Bureaucratic Processes: Dealing with a public trustee can involve lengthy bureaucratic processes and may not always be responsive to the unique needs of individuals who require personalized care and attention.

2. Limited Flexibility: Public trustees may operate within strict guidelines and may not offer the flexibility needed to tailor financial management to the specific circumstances and preferences of the person with a disability.

3. Potential Costs: Public trustees may charge fees for their services, which can sometimes be higher compared to private trustees or family members managing the financial affairs.

4. Personalised Care: Family members or close friends are often more attuned to the personal needs, preferences, and best interests of the person with a disability compared to a public trustee, who may not have the same level of personal investment in their well-being.

Therefore, by having a close family member or friend make the application for financial management orders, it ensures that the person with a disability's finances are managed with their best interests at heart and avoids potential drawbacks associated with using the NSW Public Trustee.

A lawyer with expertise in Estate planning and disability can guide you through the application process for financial management orders. They will ensure that all legal requirements are met, advocate for the disabled persons best interests, and provide ongoing support to the applicant and other concerned parties.

For personalised advice and assistance tailored to the specific circumstances, it’s recommended reaching out to a reputable law firm acting in this field.

One such law firm that can assist is HNT Legal (Parramatta, NSW), who has the extensive knowledge, reputation and experience, to support in these particular matters.