Making Power of Attorney and Incapacity

Example Of How A Power Of Attorney Was Desperately Needed...

Alice aged 48 and her de facto partner Bill aged 51 live together. Bill has a serious car accident and is in intensive care and doctors advise that he may take some time to recover and appears to have a deterioration of his mental capacity. The family home and mortgage are in joint names however since Alice and Bill never really trusted each other with finances, the signing authority on the mortgage offset and joint account requires both of them to sign before any money can be withdrawn. Bill can't sign due to lack of capacity and Alice can't sign on his behalf either because she does not have legal authority. Household bills are accumulating and Alice has discovered the bank does not have a direct debit in place to deduct funds from either of their accounts to pay the mortgage. Without a power of attorney in place, Alice will have no choice but to apply to VCAT for a guardianship order which will take time and add to her stress, both financial and emotional. Further, Bill's adult children of his previous relationship would have the right to be notified of any VCAT hearing and have their say as well and even contest Alice's application for guardianship. A power of attorney would have saved the day with Alice having immediate access to the bank accounts and avoid privacy issues when dealing with banks and other organisations regarding Bill's status. Moral of the story-without a power of attorney you could leave your spouse or loved one with their hands tied regarding facilitating your finances should you become incapacitated.

And Another Example.....

Gwenda aged 79 has been caring for her husband Harry for the last few years but cannot cope doing it anymore and has her own health issues and wants to live with her daughter. Harry is aged 82 and in very poor health and has been assessed as an appropriate candidate to enter a low care aged care facility. As with most of these facilities, they require an accommodation bond of an amount close to the value of Gwenda and Harry's paid off home. In earlier years they discussed should anything like this happen then they agreed the paid off home be sold and the proceeds placed in an accommodation bond to ensure that the disabled partner would have proper care. Gwenda is ready to sell the home to do this however there is no one legally able to sign on Harry's behalf as joint owner because he has dementia and has lost capacity. Without a power of attorney Gwenda cannot sign for Harry or sell their home. If a power of attorney was made by Harry before he lost capacity, then Gwenda could use it to carry out Harry's wishes as well as any actions for his benefit which would normally require Harry's consent. Moral of the story- dont leave it too late for power of attorney to be made eg: if dementia or other incapacity sets in, as it would be too late.

Avoid Will and Trust Litigation the Right Way