Enduring power of attorney

Have you been poorly served by an enduring power of attorney document?

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Haven’t (yet), but many make the mistake of leaving it too late - old Mum just got diagnosed with dementia - now too late to to do an EPA (she’s not mentally competent to accent to one). Presenter from the Public Trustee, said he would have at least one of these each day.

Have also heard stories of adult children holding an EPA and taking the opportunity to sell / mortgage major assets leaving their parent’s in a poor position and the other future estate beneficiaries with little to inherit.

In Qld there is a good deal of responsibility placed on the Witness to certify that the person (Principal) understands what they are signing. As a Justice of the Peace this might be the first time I see this person, usually in company with the Principal’s Attorney(s) who may be exerting some influence. I have to keep records in case I am called to account, it is usually a brief meeting.

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Thanks for taking the time to share a difficult experience @zackerii. It will help inform our reporting and it’s greatly appreciated.

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Hello Andy. I am not really sure what it is that you are seeking here.

However, if you are looking into potential problems with how they operate, then I have a thought to provide.

My approach is that it SEEMS to me that it is too easy for unscrupulous people to take advantage of someone in order to have them sign a power of attorney which privileges that other person.

Okay, this sounds vague, but my bottom line is that a possible SAFEGUARD to try to minimise some of these abuses, might be to have a provision for NOTIFICATIONS to be given to a range of relations (if such are available) whenever a Power of Attorney is authorised.

Here is the tale which has led me to this feeling.
I had a very close aunt who was widowed and had no children of her own.
For decades I had been providing financial and tax assistance to her and before her husband died, to him as well. Through this I was well acquainted with their total financial position, their mirror Wills, and their preferences in many things. Due to a disagreement between us when her mental state was deteriorating, and not wishing to cause her any pain, I withdrew from my dealings with her. It was a shock some time afterwards to discover that she had subsequently signed a Power of Attorney to a niece who had rarely been in contact with her – at a time when I honestly believe that she was not of sound mind to be able to sign such a PofA. Then when she died many years later, it seems that she had also changed her Will – remembering that in my opinion she was no longer of mental capacity.

Okay, this had been long-winded, for which I apologise to all who read this far; but my feeling is that if there had been a requirement for my aunt’s surviving siblings to be notified of the signing of the Power of Attorney, one or more of them would have known that she was not of sufficient mental capacity at that stage to have been able to make a valid declaration; and might have been able to challenge it at that early stage.

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@ray15 This is where the Witness (in Qld at least) can be called to account. As a Witness I have to keep a record of how I determined the Principal was fully capable of understanding the implications of an EPA. If it is contested then these records will be disclosed. The danger for the Principal is in choosing a witness. If you choose an old inactive JP/ Comm Dec, he might not understand his responsibilities (or die before), a solicitor who understands the process and has guidelines (and will lodge a written record with his firm) is a better choice, especially if the dispute arises many years later. In Qld only a JP, Commissioner for Declarations, solicitor or notary can Witness.

Qld Govt requires the EPA to be lodged with the Registrar of Titles if any property is involved. Principals are advised to notify a number of people and institutions - bank, solicitor, etc. This does not happen automatically. Paid carers (apart from those receiving a Carer’s pension) are now banned from being an Attorney. A friend’s uncle was severely defrauded by his paid carer over a few months - he went to jail for it but not until he had caused a great deal of grief and the old man died, leaving little that could be recovered.

EPAs are useful for people going overseas for a holiday. In this case there is a definite start/finish date. The difficulty comes when there is an EPA in anticipation of deteriorating mental capacity. This is usually triggered by a doctor’s diagnosis, otherwise it is difficult to determine when the Principal became unable to manage their affairs.

I would encourage people to do an EPA, just in case you have an accident which renders you incapable of managing your affairs. There is also Health Directives to consider. EPAs can be worded to restrict the authority of the Attorney(s) and also how decisions are reached (unanimous, majority etc).

We visited friends as they were about to make their EPAs, she was quite vague and obviously incapable of understanding an EPA, he had just had a health scare and facing his mortality. It was difficult to gently explain that if he died, his affairs would be left to his wife who couldn’t remember where she was, that the road ahead would be harder because an EPA was not in place in time.

I would encourage everyone to consider their future, and their loved ones. Have that conversation about what to do if I can’t / you can’t manage, where the Will is, how I want to go (cremation etc). Our local Anglican church has been handing out an A4 form with prompts for all these things, which you can keep in a known / obvious place. Sorry for the long post.

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@zackarii. WOW!!! Thank you for such a well-informed, and very informative posting on so many of the issues involved. You really know your stuff. Very impressed; and very grateful that you have taken so much time to reply in such excellent detail. Thanks heaps!

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Not poorly served by the EPoA itself, but I have had issues with financial institutions whose staff don’t seem to understand the concept of the EPoA. For example:

FA: “We have the EPoA, but we’ll need to telephone your father and get his approval for you to use it
Me: “He has dementia. He’d love to talk, but he won’t understand your call. He foresaw this, and that’s why years ago he set up the EPoA”
FA: “Oh, well, we’ll send you a form that you can get him to sign
Me: “He has dementia. He can sign his name, but he wouldn’t know what he was signing. Is that what you want ?”
FA: “We need his approval in some form…
Me: “Do you understand what an EPoA is ?”
FA: “You may need to talk with my supervisor…:confounded:

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If there could be some central repository for EPA’s (including notification of the triggering event) it would make things much better. Same with Wills - had a friend who died and we unearthed many signed, unsigned, undated, dated, unenforceable, Wills all over the place. Finally discovered what we thought was his last, with a solicitor who refused to release it as he had not been paid. His family refused to pay, most preferring the wording of another legal one, tore themselves apart in better family squabbles.

If an EPA is made, lodge a copy with their bank etc and when an event occurs (in a coma, diagnosed with dementia, gone climbing Mt.Everest) inform them that the EPA is now active, with proof if possible.

Whenever I think of EPAs I remember an episode of Mother & Son, where Ruth Cracknell tells Garry McDonald that his brother Robbie, got her to sign a Powerful Attorney; and he turns up to say he’s selling the house.

I believe the skulduggery around the elderly is more rife than we realise, due to the reluctance of family to go against family. My neighbour’s mother had to go into a home, so the house, her only asset, went on the market; his siblings said, “when it’s sold we can divide up the money” and he had to remind them that it wasn’t theirs yet. If he had been complicit - who could / would lodge a complaint?

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Recent experience of “someone we know” and EPA. Daughter who had EPA of elderly mother regularly stole money from mother’s bank accounts and “took” other valuables. Matter went to Vic Civil and Administrative Tribunal hearing who confirmed the ‘misappropriation’, but said they had no power to prosecute. Would be interested in anyone’s experience in taking this type of matter to the police in Victoria.

I was talking with a JP manning a regular public JP service - we have them in Qld in shopping malls, community places so people needing a JP can drop by. I talked about EPA’s and although he was a long serving and active JP, he was unaware of his responsibility to establish if the Principal was fully capable. In fact he argued he wasn’t required to - only to witness signatures.

The Qld form can be an EPA or the Long Form which also includes the Advanced Health Directive - this requires a Doctor’s certification that the Principal understands the implications of the Health Directive. While the doctor’s opinion covers understanding of Health Directives, it is still a requirement to establish that the Principal understands the implications of the EPA and can show mental competence in that regard. I was a bit disappointed at the lack of understanding, as he thought he only had to do a witness signature. If an unscrupulous person was “witness shopping”, then this would get them an EPA for a Principal who was no longer capable of understanding.

There is a need for education of JPs (and solicitors, Notaries) and the community, otherwise prosecution of the fraudster may fail due to lack of evidence from the Witness. The Qld Dept of Justice has prepared a Technical Bulletin, but you have to find it on line - they are not distributed to JPs. https://publications.qld.gov.au/dataset/25e0e3fc-9a31-4149-bd55-d10b57a3643d/resource/afb262a1-0ef8-45f2-bad9-49b296031e40/download/technical-bulletin-06-09-witnessing-epa-and-ahd-documents.pdf There is no provision for a repository of this information, should a JP retire or die.

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Here’s @AndyKollmorgen’s article on enduring power of attorney. Thanks for all the comments so far!

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Yes, Scott. We can sympathise HUGELY with your feelings.
My wife had an EPA for each of her parents; and had similar problems with their BANK, regularly. grrrr…
BUT much worse to my mind, was when they died and my wife was Executor/Executrix of each of their Wills, and obtained probate from the State as Executor – and banks and others would not accept the Grant of Probate for her to be able to act as Executor; instead they INSISTED on seeing originals or certified copies of their death certificates, their Wills, etc. — all of which had to be provided to the State, in order to receive the Grant of Probate. This was infuriating; as the Grant of Probate is the state announcing that this person has proved his/her right to be accepted as the executor. grrrr… . Raymond.

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I got mine in order, as well as the advanced care directive before going into hospital for an operation year before last. I also ride a motorbike so opted for the enduring option, you never know…

Unfortunately I now need to revoke it, issues with the nominated person. Apparently I have to go into the Trustees office to lodge it.