Power of Attorneys?

Hi there,

Have people here got a power of attorney in place in the event that they don't have the capacity to make financial and legal decisions, eg. you're in a coma?

I think it's called an enduring power of attorney (financial and legal)?

I think the other one is just a power of attorney and is for whilst you still have capacity?

Not sure if you would get both just in case.

I'm going to see my solicitor about it, but interested in what others have done.

Thanks.
 
My solicitors advised and drew up for me an Enduring Power of Attorney and an Enduring Power of Guardianship.

It's been a while since I've done them, but from memory the POG is when I'm unable to make my own decisions (eg. incapacitated) and need lifestyle choices made. Alongside the POG is another document expressing my wishes under these circumstances (from memory).

The POA is more for financial decisions in case you need them, for example I may be out of the country and need papers signed in Australia in person - my POA can present this document and sign contracts on my behalf even though I'm in control of all my faculties. It's a very powerful piece of paper - this person can act on your behalf if you're not present, so it must be someone you trust, and even then I keep the original document with my lawyers (only the original is valid for this purpose).

There are more details and benefits that escape me at present I'm sure, but that's the key points. Both are important and should be organised.
 
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Everyone in our family has EPAs after our neighbour had a stroke and her affairs were taken over by the public trustee. they froze all the joint accounts and her hubby had to apply to them for every little thing. They were pensioners but owned their home which PT took control of half, meaning hubby couldn't sell. PT demanded he perform items of maintenance (repaint the whole thing) But he had to find the money for it out of his half of the pension and then apply to them for reimbursement, same story with rates, insurance etc. All the while trying to come to terms with having his wife now in a vegetative state and having to fork out for the nursing home stuff. Nearly sent him over the edge.

This was about 20 years ago and everyone who knew the couple has had enduring Power of Attorney ever since.
 
My wife and I both have POA for each other. She often signs documents for me while I am overseas.

So far so good, she hasn't run off with everything Yet.... :eek:
 
POAs may also be with conditions, can be for certain assets, or assets held jointly or "in common" etc.

Piston is quite right. The POAs (or more correctly, PsOA to be a pedant) we use when bidding at an auction on a client's behalf, restrict us to bidding:
1. On behalf of a client
2. Up to a certain $ price
3. On a certain day only
4. and on a particular property only
- all good really.

In relation to EPsOA - I think (??) you can have one for medical stuff i.e. don't pull the plug on him (or do pull the plug after say 3 weeks - whichever) and then there is another for financial matters. Is this correct?
 
I don't have a legal background, however, an EPA you can include whatever restrictions, but a single document can cover both the medical and financial.

If you wanted different persons to make the medical and financxial decisions, then I believe you would need two EPAs each with restrictions/limitations on on what each covered.

This is the way it works with several EPAs I hold.

I highly recommend everyone with any assets having EPAs and Wills and definitely do not leave it to the Public Trustee to dilute all your hard work.
 
In relation to EPsOA - I think (??) you can have one for medical stuff i.e. don't pull the plug on him (or do pull the plug after say 3 weeks - whichever) and then there is another for financial matters. Is this correct?

This is how I understand it and is what we have in place, however if the medical part is required I don't want to wait three weeks, so will be requesting an early settelment.;)
 
This only helps when a person is still alive, which is why it is important to have a legal will drawn up as well. Because without a will, all matters will revert to the public trustee and it doesn't matter who had a POA or POG prior to death - which can leave a huge mess, even if that person has seemingly little.
 
Because without a will, all matters will revert to the public trustee

Not necessarily.

For an "intestate estate" the Next of Kin can apply for a formal document issued by the Supreme Court called Letters of Administration. This document authorises that person to become the Administrator to administer the estate of the deceased person.

There are companies that assist individuals (on a fee basis) in the process and the one below was one such company that assisted us about 10 years ago when a family member passed away without a will. Whilst this one is for WA , I am sure there are similar in other states

http://www.estateadmin.com.au/page/help.html

If family or N.O.K. do not apply for the LOA, then I believe the administration of the estate will default to the Public Trustee for which a sizable percentage of the estate is deducted to administer the process.

It was a long drawn out process, and IMO any adult with family who does not have a will is plain stupid and inconsiderate.
 
This only helps when a person is still alive, which is why it is important to have a legal will drawn up as well. Because without a will, all matters will revert to the public trustee and it doesn't matter who had a POA or POG prior to death - which can leave a huge mess, even if that person has seemingly little.

Yup, had them set up the same time as my will and Testamentary Trusts.
 
IMO any adult with family who does not have a will is plain stupid and inconsiderate.

Hi Joe

That is a very good point. IME many people view Wills as only useful to direct their assets after death and consequently don't get around to preparing them on the basis that they don't care what happens to their assets after they have passed away as they obviously have no further need for them.

I believe the matter is better framed as a massive headache for remaining family to sort through right at a time they can really do without further hassles. Dealing with the loss of a family member is never easy for anyone and these types of issues really don't help. The same goes for EPAs - the time your partner is in a coma is not a good time for an argument with the Public trustee or lawyers and accountants.

Just plain stupid and inconsiderate... couldn't have put it better myself!
 
I have just taken out Enduring Power of Attorney Financial.Enduring Power of Attorney Medical .And lastly Enduring Power of Guardianship plus new will .These will all be held in place till needed ,then activated by solicitor .Bearing in mind that I have covered all for future as best I can ,all of these plans are terminated upon death where the executor of said will then takes over
Cheers Jann
 
Thanks for the replies.

I ended up updating my will and getting an enduring power of attorney (financial), with two family members getting separate authorities here.

Decided against the medical one for now.

And my solicitor suggested testamentary trusts may be more beneficial to me once I have more beneficiaries (something to do with controlling and keeping assets in a blood line), so I haven't done this as yet.
 
And my solicitor suggested testamentary trusts may be more beneficial to me once I have more beneficiaries (something to do with controlling and keeping assets in a blood line), so I haven't done this as yet.

TT's aren't beneficial for you, period. They are for your beneficiaries, and they can be set up before you have them or after, no reason you can't do it now. I had mine set up 2yrs back including accounting for my future children - no point in having one drawn up then changing it 2yrs later when the first kid comes, and another alteration when the next kid comes etc. I don't mind paying lawyers fees, but I do like to minimise them where possible. ;)
 
IMO any adult with family who does not have a will is plain stupid and inconsiderate.

I believe the matter is better framed as a massive headache for remaining family to sort through right at a time they can really do without further hassles. Dealing with the loss of a family member is never easy for anyone and these types of issues really don't help. The same goes for EPAs - the time your partner is in a coma is not a good time for an argument with the Public trustee or lawyers and accountants.

Just plain stupid and inconsiderate... couldn't have put it better myself!
I agree with these sentiments.

Here's a true story... Nth Qld family owns a cane farm. Mum and Dad want to pass it on to eldest son, who works on the farm. For various reasons, they transfer ownership of the cane farm into the eldest son's name before they retire, even though they intend to continue living on the farm until they pass away. There's no intention for them to pay rent, and in fact, in return for the gift of the farm, the parents are going to get a share of the cane farm profits until they pass away. (I think this was all related to optimising their position with regard to pension assets and income tests.) It was all done on a handshake basis. Son lives elsewhere with his wife, who works with him on the cane farm. All is fine until the son dies in a farm machinery accident. He's intestate, so the ownership of the cane farm automatically goes to the daughter-in-law. Thankfully, she's a great gal, works on the farm, loves her parents-in-law etc, so it's still not a problem, they live there and are paid a profit share. BUT... the lesson hasn't been learned, and a year or two later, tragically, the daughter-in-law is killed in a car accident, and she's also intestate. :eek: Ownership of the cane farm now goes automatically to her parents. Her parents don't like the in-laws, for various reasons. Parents-in-law now find themselves in their late 60s, kicked out of the home they'd lived in for 40 years, and deprived of a substantial portion of their income. :( Ultimately, I understand that the parents-in-law ended up "buying back" their own cane farm from the parents-in-law for nearly $1M, with the help of their other kids.

All of which could have been avoided by having thought through the possibilities and putting the appropriate documents in place. :(
 
Everyone in our family has EPAs after our neighbour had a stroke and her affairs were taken over by the public trustee. they froze all the joint accounts and her hubby had to apply to them for every little thing. They were pensioners but owned their home which PT took control of half, meaning hubby couldn't sell. PT demanded he perform items of maintenance (repaint the whole thing) But he had to find the money for it out of his half of the pension and then apply to them for reimbursement, same story with rates, insurance etc. All the while trying to come to terms with having his wife now in a vegetative state and having to fork out for the nursing home stuff. Nearly sent him over the edge.

This was about 20 years ago and everyone who knew the couple has had enduring Power of Attorney ever since.

Hi,
I definitely think its important to have wills etc, but in this situation, the family could apply for guardianship, rather than having affairs taken over by the public trustee. My brothers and I recently became guardians for my mother, because she is no longer able to make her own decisions due to dementia. We had to complete an application form, go along to a hearing (together with mum, which was difficult!), and they determined that she was no longer able to make decisions regarding any area of her life. There are a number of areas that they rule on, so for example we could have become financial guardians, but not been able to make decisions on where she lived. There are limits to our power, which are standard limitations, eg we cant sell her house without approval. but we have full access to her bank accounts, we can sign for nursing home admission etc. We need to submit financial statements each year.
I would recommend that whereever possible someone you know is your guardian or the executor of your will instead of the Public Trustee.... they charge quite high fees, and its much more legalistic to work through. Even though we are guardians, we still have to pay the Public Trustee a compulsory fee each year to review our yearly plans etc..... it makes me really cranky!!
Pen
 
My wife and I both have POA for each other. She often signs documents for me while I am overseas.

So far so good, she hasn't run off with everything Yet.... :eek:

My wife is Philipino and 20 years younger than me ,do you think I should give her POA???:confused:
 
My wife is Philipino and 20 years younger than me ,do you think I should give her POA???:confused:

Dunno if nationality or age are relevant to the decision, Pa1nter. But it may be good risk managment for everyone to not choose their spouse. Perhaps a trusted family member or friend would be a safer option. No-one thinks that a spouse would ever do the wrong thing. As we know, it happens quite often. I now have a house guest after his wife secretly squirreled away the money & said goodbye. Pretty sure she'll get caught under Family Law provisions anyway, given that she's still in the country. :rolleyes:
 
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