VIC House Dispute & Power of Attorney

[Destiny]

Hi
I have POA and been put into very bad situation. Mother separated, left house 4 years ago and divorce granted by court today as she has been delaying but did not follow through with Response to Divorce. I understand 1 month to wait for finalising.
This afternoon she went to house and change some of the locks. My father is recently since Feb in an Aged Care home, but his property remains at the house. They never got around to completing settlement of property orders due to when he fell ill.
Mother stated when discovered by neighbour "I am also owner and still legal wife and he isn't here now, so can do". So now I cant get into house or get his property.
Tried to get answers but everyone closed now or no clear answers. They should have sorted ages ago.
Do I have right as POA, to say on his behalf to her, she has not right to enter home and his property? He says verbally no she cant go in and just takeover all property unless agreed. Does she need to get permission to do so after leaving all those years and move in now?

Don't know what to do as stuck in middle of dispute, and need answer to stop her before she goes further ,or just give up and let her takeover!

 

[Atticus]

Do I have right as POA, to say on his behalf to her, she has not right to enter home and his property? He says verbally no she cant go in and just takeover all property unless agreed. Does she need to get permission to do so after leaving all those years and move in now?

Your dads instructions are clear, if that isn't enough then as POA you have the power to act on his behalf (consistent with his best interest)... Recommend you get a locksmith there SOON.. Change locks again... Tell her that until a property settlement is finalised she is breaking & entering & that you will report to police...

What stage is the settlemnt at? .... How has your dad paid for his RAD with the aged care facility or is he just in respite & planning to return?

 

[Destiny]

Hi Atticus
The settlement came to a halt as he fell ill and hospitalised before aged care home. I think the only thing that got done was an email to her solicitor making an offer and will prepare if agreed. And I just remembered she told me, that she hand wrote a letter herself stating to agree? But his solicitor then claimed letter not received, although she hand dropped into Dad's office. Then went no further.
Dad is paying full RAD fees, due to the house (half asset), and is terminally ill so wont be out now.

 

[Atticus]

As you may know, a divorce in itself has no affect on asset division(property settlement), so the fact that a decree absolute is near does not give her any express or inferred right to occupy the house even when the divorce becomes absolute .... The fact that she has an equitable interest in the place, also doesn't give her an automatic right to occupy now it's vacant..

Best talk to your dad about what offer has been made & get onto the lawyer to follow it up with mum ASAP ...

Do you know if dad has a will?.. Has it been made since the separation to reflect his wishes?... Does he still have legal capacity (of sound mind)?

 

[Destiny]

Hi
Yes Dad has a Will which he took her name off. I would say he still has legal capacity currently, but his days vary from being very comprehendible to some days in his own world.
I had read in several places that being a joint owner they have equal right to live in property. Is there a timeframe of him moving out, in this case, which she can say he abandoned it say taking control of ?
I agree totally with you she shouldn't just claim occupancy, but this why so confused as to what to say to her when she is saying she legally owns the house.
Thanks

 

[Atticus]

I agree totally with you she shouldn't just claim occupancy, but this why so confused as to what to say to her when she is saying she legally owns the house.

At the moment they BOTH legally own the house.... BUT..she moved out of the house 4 years ago... It has been your dads home since then.. She retains a FINANCIAL interest in the place, but that does not give her any right to occupancy over your dad... Even though he is now in residential care, his belongings are there, services are still in his name etc ..... that is why you need a formal settlement & very soon given your dads state of health, probably just along the lines of either a straight 50/50 share after sale, or she buys out his 50% interest if she wants the place...

 

[Poidah]

I would say he still has legal capacity currently

Do you think it is worth getting a doctor to write a formal letter on his decision making capacity currently?
If he is in the hospital system, then social workers can help you negotiate the various issues. If outside the hospital then you may need to hire your own help or coordinate with the visit times of the GP to the home. It will be likely that a specialist such as a geriatrician or psychiatrist may need to be involved, so you might need to ask for a referral. Once decided, it would be good to have him decide what to do with the house and his stuff there, through written letter and instructions. It would also be good to have his will reviewed and reaffirmed as well without the cloud of whether he had capacity.

Are you able to contact your dad's lawyer?
It would be worthwhile getting some directions or instructions from his lawyer which would allow you to back off a bit more. Ideally, it would be great if his lawyer do the financial and property advocacy for dad as much as possible, so you can focus on dad's health. As a POA, you are meant to follow dad's previous wishes and instructions, you should not trying to guess his instructions and his wants as much as possible. His lawyer and accountant etc may have a better idea about his finances than you do, so you can follow their lead, because it does not sound like you know what his wishes are. Hence why you are in this very difficult painful situation.

Mother should not be your main focus if you can avoid it, and ideally mother can be brought on board to support his wishes even though they are divorced and separated. It really does not matter what mother does with the house, you can always challenge her on estate stuff after he passes, try to record and have records of all his assets if you can. But over time, his wishes should be made more obvious and mother will hopefully realise his wishes matter and going against it will only mean a poorer outcome for her no matter what happens. So try to be as minimally involved as possible, their troubles and legal fights were not yours, so try to avoid it as much as possible. You should try to be just there to make decisions for dad's health as your number 1 focus, and everything else second. So ideally dad should have all his instructions written out as much as possible, his health wishes, financial, etc etc. If not then try to map out his wishes after discussing with all the people that know him well (yes, even mother yikes), so you can feel more comfortable and confident in fighting for his wishes, and doing the best for him according to what he would have wanted.

 

[Destiny]

Hi Poidah
I spoke to solicitor today as wife causing more trouble and he suggested decision capacity also. I approached aged care home and they saying $750 as will need geriatric nurse to dMG
He definately needs to relook at Will as reflects still when my sister causing major problems and we revoke her POA. Painful is not the word with both of them!!
I was told to get an intervention order also to protect his property as she has continued to attempt going in house. My time is wasted constantly chasing two people behaving badly. Hopefully peace can be restored with intervention.
Unfortunately mother pretends to listen but only to get info and benefit herself and then turns around and starts more trouble. There is no dealing logically with her, only her me me me selfishness, I have tried mutually enough and give up!
So now in situation that legally needs to follow all through ASAP.
Dad doesn't need this in his current health situation, but both are to blame for handling/behaving badly.
I totally agree with you!
Thanks so much

 

[Poidah]

saying $750 as will need geriatric nurse to dMG

It would be a geriatrician (not a nurse), a doctor who specialises in aged care. A geriatrician would be able to help provide a formal report and assessment that can help you.

then turns around and starts more trouble.

I am not sure whether it is worth stressing about protecting his property at this time. An injunction would be a lot of work, and it is not like there is a danger of damage or harm to the house is there? Unless there something valuable at his house or something urgent that requires immediate court action? In the end, wife/mother can not "take over" the property really. People can move into a house and not own it. Squatter's rights seems unlikely to apply here...

Have you gotten a lawyer for yourself? It would help you protect your interests and allow you to know what should and can be done for you.

 

[Atticus]

I wouldn't be trying to have his legal capacity tested.... A Dr can give an opinion regarding legal capacity, but in WA legal capacity is decided by the state administration tribunal after reviewing a very detailed questionnaire conducted by a DR... So what I'm saying is, at the moment, until the SAT is satisfied otherwise, he has legal capacity... That's what you want. That means he can still change his will if he wants & instruct his POA to do what he wants...

I was told to get an intervention order also to protect his property as she has continued to attempt going in house.

That is a good idea, I would be doing that, see your dads lawyer about taking one out if you are not able to yourself. You can do it on his behalf. Your grounds are that your mother continues to attempt to enter the property against your dads instructions. If she has caused any damage in those attempts, then damaging property is further grounds for an intervention order...

1) If your dad wants to change his will, he should be asking his lawyer to visit him & get it done.. as long as your dad understands the terms & affect of the will, your lawyer will have no reason to think he has lost legal capacity.... Do that urgently if your dad wishes it to happen....

2) Get the intervention order that will have legal consequences for your mother if she enters the house or gets anybody else to

3) Have your dads lawyer moving ASAP with the property settlement

Is your mum looking to buy out your dads share in the place so she can move in, or are they going to sell the place & divide the money?