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Merv

enduring power of attorney

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A pretty common mistake made by parents,is assuming the eldest sibling is always the best suited to POA duties

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On this subject, don't wait till it's too late. My wife was trying to help out her parents arrange something now that her mother is losing it. You can't sign an Enduring Power of Attorney once you've been diagnosed with Alzheimer's. The road becomes a lot trickier.

 

And yes Merv, her Dad wants to give it to her & her sister, not the eldest son.

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On this subject, don't wait till it's too late. My wife was trying to help out her parents arrange something now that her mother is losing it. You can't sign an Enduring Power of Attorney once you've been diagnosed with Alzheimer's. The road becomes a lot trickier.

 

And yes Merv, her Dad wants to give it to her & her sister, not the eldest son.

Yes then you need to have the matter heard in court, (before a magistrate or registrar I expect) to get a court order ratifying it and that becomes more expensive than just signing some documents in your solicitor's office.

 

In NSW there are 2 things...

1. General Power of Attorney - so you can deal with property, bank accounts and decide financial matters.

2. Enduring Guardianship - so you can make medical decisions, particularly end of life decisions like turning off life support.

 

I obtained both for my mother. the community nurses that used to visit suggested it to me while she was still quite capable but starting to show the first signs of memory deterioration.

 

As her only child she didn't have much choice but even then as an only child I still wasn't her favourite! She found this young girl at work whose birthday was the same day as mine and she became the daughter she never had :lol: Karen is 4 years older than me but she and my mother were close friends forever so I invited her to do a reading at the funeral. Back to the point, it is perfectly legitimate that a parent chooses whom they think best suited for either of these powers. There is no point in appointing someone power of attorney that has zero financial or commercial acumen. Likewise for the power of enduring guardianship, you'd want someone who'd carry out your wishes.

 

Enduring guardianship was a power I'd hoped I'd never have to use, fortunately though it was not to turn off life support or anything quite as crucial. I had to decide whether psychiatric treatment should be taken against my mother's wishes. She had descended into hopeless depression and refused to eat and we had hoped with treatment she would feel better and eat again. There was no physical reason she should depart this world but after fall and breaking her hip she had to live in a nursing home and after a year or so I suppose she decided she'd had enough. Quite a common occurrence I hear, something that never crosses your radar when you are younger and your parents are still quite fit.

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We sorted POA for both of us before the last long overseas holiday (and updated wills). Mr T's sister was a no-brainer for both of us to use. She executed their Dad's estate with great diligence and wisdom and I reckon they are the two most important characteristics.

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Another tip is don't have a joint POA. That is what my Dad did. This then meant the bank would not deal with me without my sister also attending and signing off at the same time.

 

Joint executor of the Will is not too bad, but again there was a requirement to sign forms together. Luckily I convinced my sister to come into the city and use my solicitor. That made it is a bit easier.

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I advise my clients to get their wills & POA when buying home while they are with a solicitor anyway. Often they will do a deal for you to do them at the same time as conveyancing.

The other thing is that speak with your planner as sometimes they maybe able to set this up as estate planning and potentially be able to deduct your super for the premiums / wills / POA.

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They give the legal advice as well? Law societies in each state would be happy to hear that.

 

If it gets done wrong and there's a claim against them for setting it up I doubt whether there insurer would cover them.

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No legal advice that I am aware of, but my understanding is that the cost can be deducted (from your super) if it's set up via estate planning as often people want to do this kind of thing, but the out pf pocket expenses are the sticking point. Hope that helps

PS - I am not a planner!

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if a person was looking for an official document outlining the current POA arrangements for an aged parent, would that be in their Will ? and how do you best get a copy of it

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I'd guess it was drawn up (and probably held by) by the parent's solicitor. I doubt a POA can be 'in' their will because I assume death would cancel any POA. It's quite possible it was drawn up at the same time as the will though.

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If you were the attorney you would have had to sign accepting the role. If you haven't done that very likely you haven't been appointed.

 

If lawyers did the will and attorneys were done it is likely to be with them. You could ask but they would be in their rights to decline to answer you if you are not an attorney or executor without the consent of aged parent being given to disclose the information.

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correct

 

unless the POA is subject to a hearing. whereby authorities are able to access the document

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What's the deal if there isn't a POA?

 

And my mum is very old and it's just my sister and me?

 

I believe it's for things like using your mum's bank accounts if she's not capable, or you need to sell her house etc.

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Is she in aged care or still independent ?

 

A medical practitoner has to assess her to determine if there is any impaired cognitive capacity and at what level.

 

These things are best addressed early on in the piece before their health declines

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We gave enduring POA to the sister-in-law before our last OS trip plus got our wills updated. Neither of us is anywhere near our dotage. It's good stewardship.

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Whilst parents, siblings and partners may be well, it only takes a serious accident for an issue to occur. Easy to spent s little money and let it run until you want to change it later. In the meantime, you have cover. It's s bit like insurance - coverage in case of emergencies.

 

FM

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Can you download a legal POA form off the Internet or do I have to go through a solicitor?

My older brother suffered a minor stroke at beginning of year and not getting better. I am executor of the Will but no POA in place.

I have contacted his solicitor twice to send by brother the forms but no luck so far.

He lives on his own in Sydney's Eastern Suburbs and I am Regional.

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Can he give instructions to his lawyer by phone and then have the lawyer do a home visit to sign it? Most lawyers will do home visits for elderly or immobile clients.

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I know of a situation where the POA is acting inappropriately with an oldie in a aged care facility. eg attempting to deny visitation rights, abusive phone calls to family friends. closed funeral arrangements. bullying nursing staff. etc

 

POA / primary carers appear to be in a privileged position with authorities, and good luck trying to find anyone interested in putting the spot light them unless their is a fatality.

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Thanks, I have literally just found out he was re-admitted to hospital again yesterday after having a fall, so I will contact his solicitor and ask him if he is able to see my brother there and sign things why he is still capable.

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Hope he's okay, sounds like a good time to get things sorted just in case.

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Thanks H,

I should have done it sooner, but fortunately he's in hospital getting care and his brain is still OK, just the speech and body failing at this stage.

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