NSW Enduring Power Of Attorney – Legality and Rescission

[Emery Deveraux]

Some months ago my elderly father (a widower) had bad fall which caused a brain injury. Initially my father was confused, unable to separate reality from imagined events and for a period was off with the fairies. A Power of Attorney (POA) including enduring power of attorney provisions was invoked by my sister as my father at the time was unable to manage his financial affairs. My Father’s POA nominated my sister as his attorney, and in the event that she was unable or unwilling to act as his attorney and not otherwise, then her husband was nominated as his attorney. This all sounded sensible and logical to me as when my father’s POA was prepared in NSW some years ago, I was living a long way away from my father, whereas my sister and her husband were and continue to live in very close proximity to my father. I recently relocated back to the same town that my father lives in and it is very apparent that my father has completely recovered mentally from the brain trauma that he sustained. Medical staff currently attending to his needs also agree with this assessment. As he is in his nineties, he is physically frail and confined to a wheelchair , but mentally, he is as sharp as a tack.

Whilst taking him for a coffee at his favourite shopping centre, he wanted to get some money out of his bank account to buy a few odds and sods. I wheeled him into his bank so that he could withdraw $50. He was then advised that he was unable to withdraw any funds unless either my sister or her husband were present to approve it, or for either of them to withdraw funds on his behalf. My father was extremely upset at this occurrence and requested that I wheel him around to the credit union that he also has accounts with in the same shopping centre. Again the same message was conveyed to him and this elevated his state of anger and distress. The questions I have regarding the above scenario are as follows:

1. Is it legal for the both the primary and secondary attorneys to be appointed simultaneously and act jointly and severally when the POA states :


I appoint my daughter, Wendy Citizen of Wendy’s address but if she shall be unable or unwilling to act then in such event but not otherwise, I appoint my son in law, John Citizen, of John’s address to be my attorney(s).

2. What actions must be taken to establish that my father has completely recovered from the brain injury he suffered, and has full cognitive capability, so that he can regain control of his bank accounts and be able to withdraw funds as and when he see fit to do so?


Many thanks in anticipation of any advice that can be provided in this regard as whilst this is causing my Dad much angst, my sister and her husband are content to leave things as they are, and are ignoring Dad’s requests to relinquish control over his financial affairs.

 

[Sophea]

Hi Emery,

The first thing I would do is to contact your sister and request that she notify all financial institutions that your father has regained capacity and there is no longer any requirement for her to approve transactions on his behalf. And incidentally, no - the wording would not tend to indicate that your brother in law should have any rights as attorney whatsoever, if your sister has assumed the role. It is not worded so as to appoint them jointly / severally.

If there is uncertainty over your father's capacity to make decisions, you should request a formal assessment of his capacity by his GP or an appropriate specialist and get it in writing so that you can show it to whoever requires it to demonstrate the enduring power of attorney has come to an end.

If the situation still remains unresolved, you an make an application to the State Administrative Tribunal for orders regarding his capacity.

Hopefully you can sort it all out with step one though.