Jen McMillan was admitted to practice in New South Wales in 1989 and in Western Australia in 1992. She is a Law Society of NSW accredited specialist in wills and estates and has extensive experience in this area in private practice and with a trustee company and as the former Practice Leader – Wills and Estates in the College of Law’s LLM (Applied Law) program and as a former part-time Senior Member (Legal) in the Guardianship Division of the NSW Civil and Administrative Tribunal. Jen is a member of the NSW Law Society Elder Law Succession and Capacity Committee and Property Law Committee and a member of the Society of Trust and Estate Practitioners. Jen is the Manager of Practice Support Services at Lawcover.
Recorded Webinar: Capacity in the Elderly and Lawyers Professional Conduct Obligations
Date/Time
About the Webinar
Capacity to do what is the first question, because capacity issues arise every time you are acting for a client with some form of cognitive impairment. It’s not just about the will - the question arises every time you receive instructions. It arises when your client is said to have lost capacity. Capacity also raises issues of professional conduct: should you act on the instructions or not? Get it wrong and you might find yourself in hot water with the regulator. This presentation will cover:
- Capacity and willmaking:
- the Banks and Goodfellow test - has the law developed at all?
- the duty to make the will - where it stands today
- Making an enduring power of attorney:
- what is the test of capacity for an EPOA?
- do you have a duty to make the power if possible?
- Taking instructions on other matters - determining the test
- Practical guidance in assessing capacity:
- checklists and guidelines - does box ticking help - and do you have a choice?
- meeting the client - in the absence of relatives
- tell-tale signs of capacity loss
- Capacity is a legal test - what is the role of the medical profession in assessing capacity?
- when should you have the client seek a medical opinion?
- what questions should you ask the doctor and how?
- Capacity and professional misconduct:
- what the professional conduct rules tell us
- likely sanctions for breach
- case law on the issue
- practical steps to stay out of trouble
Presented By

Jen McMillan
Manager, Practice Support Services, Lawcover Sydney, NSWWho Should Attend?
This webinar is suitable for succession lawyers – Australia wide. This webinar is for practitioners with some knowledge in this area and looking to improve their knowledge.
Enquiries/Assistance
If you need assistance or have an enquiry, please do not hesitate to contact our Webinar Coordinator, Lisa Tran on (03) 8601 7709 or email: [email protected]