Monthly Archives: September 2018

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the signing authority on the mortgage offset and joint account requires both of them to sign before any money can be withdrawn.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.

(c) Copyright Maria Angela Rigoli. All Rights Reserved Worldwide.

Divorce Attorney: Considerations Before Advising Your Clients to Merge Step-Families

Evaluate this scenario: you and your ex share physical custody of your children, both of you have moved on and found new partners, you partners have children of their own, the children are of different ages but within a couple years of each other. How are you going to handle this? How will you merge the families? You have a need to move on from a previous relationship that did not work out as hoped, and you also have must do what is in the best interests of your kids.

One thing that many families are doing is doing a partial merge of the two families. This means that you and your new partner would each keep your own respective residences, but that the two of you would still spend a lot of time together. This is a conservative approach mainly designed to protect your children in the event of a break up. It is important that your children have, at least some degree of stability in their lives. Moreover, many couples enjoy living with what amounts to a bachelor with kids-type of lifestyle, and they find more freedom in maintaining separate residences from their partner.

Just because this arrangement may lack the formality of a marriage, this does not mean that either of the partners is not committed to each other. In fact, it may be possible that you and your partner own property together as co-owners. If you are interested in making absolutely sure that your interests are protected, your local divorce attorney should be able to draft documents indicating the nature of the co-ownership and what happens upon dissolution.

One of the reasons that many couples are blending families is the result of an unpleasant break up. Even with a good divorce attorney, separating a family can be hugely emotional and tough. This is even more the case where there are complicated child custody and financial issues. As a result of fearing a repeat of this experience, it is understandable to not only wish to avoid this for yourself but also for your children. While this is somewhat intuitive, recent reports have backed the idea that stability is more important for children than having a family that it is intact.

Any such scenarios can challenge the definition of what a family is. This does not mean that less-structured family compositions are not acceptable for all involved. If you are against this, however, it is important to speak with your divorce attorney about ways to prevent your children from being brought up in an environment where the other parent is dating various other people without marriage.

One negative to partially blending families is that this is generally more expensive. Naturally, it costs more to have two households rather than one consolidated home. While this is often true, it is important to note that the likelihood of needing a divorce attorney goes up, rather than down, in a second marriage. A costly break up could undo any savings by fully blending families.

The above material is intended for information purposes only. It is not intended as professional legal advice and should not be construed as such.

What is Power of Attorney and When and How Would You Use It?

There are times in life when someone may be asked to fill out a power of attorney form. At another time, someone may decide that they need a formal means of allowing someone to act on their behalf. Some people may have heard of a power of attorney, and some may simply be aware of the existence of such a creature but only have a hazy idea of what it does. So, let’s define it, see when it could be used, see what types there are, and what the disadvantages and advantages are.

In its simplest form, a Power of Attorney is a formal, legal means of handing over your authority to make certain decisions, and act on your behalf – in your name, to someone else. The types of actions allowable are generally defined to some extent, and allow the holder of the document to make daily decisions in your name, represent you in specific legal situations, or handle business, legal, or financial situations in your name. A completed power of attorney form may set out very specific situations when it may be used, or it may be quite broad in scope, depending on your wishes.

Use of power of attorney generally takes the form of a preemptive strike of sorts. You know that you will not be able to attend to certain matters, for example, so you assign the task of acting in your behalf to someone else. People in the military, for example, are often away from home when important events which take place, so they may run to the Judge Advocate General’s (JAG) office and fill out a power of attorney form to enable their spouse to take care of certain events in their name. An executive or business owner may be unable to be physically present at an important business event and can empower another to act on his or her behalf. Others may simply be planning ahead to a time when they might not be able to make certain decisions for themselves. Having completed what is generally a relatively simple form assures them that someone they trust will have the reins and be legally able to act on their behalf.

There are essentially two types of power of attorney – durable and limited.

The durable power of attorney permits another party to act in your name and behalf in almost any form or type of business or transaction. Someone who wants to separate themselves at least semi-permanently from certain activities, such as buying and selling stocks or managing property might choose this option. People who are disabled and cannot travel about conducting their own affairs may designate a trusted individual to have the authority to act in their name. Someone preparing for a day when they may no longer be able to accurately assess and act on matters requiring their thought, decision, and action may prepare one in advance of that time.

The limited power of attorney is a simpler affair. It is used to allow your representative to act on your behalf, but with certain limitations. There are essentially two possible limitations:

* By Task: In this form, the authority granted is specifically stated to be for a certain purpose…to buy a car, or sell a certain piece of property, for example.

* By Time: In this instance, there are specific date limits set. This could be used if you were going to be out of the country for a week or two but wanted to make sure that certain things got taken care of while you were away.

As you can see, having someone available to act on your behalf in times when you may not be available or are incapacitated can be handy indeed. This “attorney-in-fact” can help you keep your affairs managed while you are occupied with other situations or events. All they have to do is produce the power of attorney form you prepared and sign or act as if you were there yourself. The scope of the authority, either by task, time, or both is easily written into the document. In the limited form, the authority granted will automatically expire at a certain time or upon the completion of the task, but, as the person who made it in the first place, you may revoke it at any time.

It is a simple task to complete but legal counsel may be advised in some instances, It is also a common task, and you will be able to find well designed power of attorney forms in office supply stores and online.