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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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As reinforcement of why you need to get this done earlier rather than later, 2 years after first posting on this subject, they are still trying to organise the EPOA. First go through, the judge said no. She said that she didn't feel it was the best thing for her MiL. How a judge can say that I have no idea. This means an 84 year old that can hardly walk, can't get out a a chair by herself, has kidney failure, heart problems, and can't remember to go to the toilet so has to be cleaned up at least twice a day, can say, "No I don't want to go to a home", and her elder (arthritis ridden) husband now has to look after her. It's absolutely killing him, tearing more than one family apart, and she cannot even be placed in day respite to give my wife & her Dad a short break till this is sorted.

Do it now.

 

ps: My response after hearing the first verdict was that they should have dropped the MiL at the judge's house for a few days.

 

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4 hours ago, Ex-Hasbeen said:

As reinforcement of why you need to get this done earlier rather than later, 2 years after first posting on this subject, they are still trying to organise the EPOA. First go through, the judge said no. She said that she didn't feel it was the best thing for her MiL. How a judge can say that I have no idea. This means an 84 year old that can hardly walk, can't get out a a chair by herself, has kidney failure, heart problems, and can't remember to go to the toilet so has to be cleaned up at least twice a day, can say, "No I don't want to go to a home", and her elder (arthritis ridden) husband now has to look after her. It's absolutely killing him, tearing more than one family apart, and she cannot even be placed in day respite to give my wife & her Dad a short break till this is sorted.

Do it now.

 

ps: My response after hearing the first verdict was that they should have dropped the MiL at the judge's house for a few days.

 

Hi Ex-Hasbeen, I feel sorry for you. I managed to get POA and Enduring guardianship for my brother with the help of doctors letters saying he was terminal and unable to sign documents and make financial decisions. He is still now in permanent aged care. Just a bit of advice for anyone going through this is the importance of sufficient ID, especially claiming anything through Centrelink, as my brother did not have a drivers license or a recent passport and it took me over 6 months alone just to prove he existed at all, even though I had his birth certificate and was receiving invoices from the Aged Care Facility.

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We got a POA done when we got our Wills done years ago. We’ve used the POA a few times now. A family member has POA for both of us and has been able to sign bank docs and real estate docs when we sold a property (we were overseas on holidays). 

When we first starting combining assets and bank accounts, our solicitor suggested we get POAs done. If a person becomes ill for a long period of time or has a critical accident  .. it’s hard to do much financially if accounts or assets are in joint names.

Our bank also has fully executed copies of the POAs on file. It’s been a simple process to use it.

Edited by beginnergirl

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Re Enduring Guardianship for my mother.  I'm told I need a solicitor to explain this document to me before I sign it. I've read it and it's quite short and easy to understand. Nevertheless when I rang a solicitor to book an appointment to have it explained to me I was told it would cost me $330 as that's the charge for an hour or part thereof. Does that sound right?  Seems like a lot of money for something that might only take 15 minutes tops. 

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Do you need it explained?

In this current World of compliance and arse covering - yep.

Do I agree - not really.

Same scenario if you come and get a loan from me this days and require a guarantee from directors etc - I will send you to a Solicitor to have the document explained prior to signing so that you understand exactly what you are signing.  The deal wont progress without it.

I have seen Solicitor costs range from $150 to $1500 for this service. They have you over a barrel so can charge what they want.

$330 in my experience sounds about right. Sorry.

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Wow! Assuming it only takes 15 minutes I think I'll just sit there for the next 45 minutes and make them watch me twiddle my thumbs 😡

  • Haha 4

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On 13/07/2018 at 12:26 PM, A2K said:

Wow! Assuming it only takes 15 minutes I think I'll just sit there for the next 45 minutes and make them watch me twiddle my thumbs 😡

run a few other things past him, like maybe updating wills etc.

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On 13/07/2018 at 10:14 AM, A2K said:

Re Enduring Guardianship for my mother.  I'm told I need a solicitor to explain this document to me before I sign it. I've read it and it's quite short and easy to understand. Nevertheless when I rang a solicitor to book an appointment to have it explained to me I was told it would cost me $330 as that's the charge for an hour or part thereof. Does that sound right?  Seems like a lot of money for something that might only take 15 minutes tops. 

Do you require it no. Does $330 for 15 of your time sounds about right. It isn't 15 of the solicitor's time, it is the years of knowledge built up that you are paying for. 

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Sorted. I remembered an old friend who is a solicitor and started her own business. She did it for half the price plus it was good to catch up after not seeing her for a few years. Now I'm taking my saving of $165 and heading to the local art supplies shop. A new career beckons. 

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