Deidre, it is worth checking with dad's lawyer, whether the power of attorney is permanent though. It may not be even though it was triggered and he was was cleary unwell and incapable before. It does get messier as people recover and he regains capacity.
VIC House Dispute & Power of Attorney
- Thread starter Destiny
- Start date
Deidre, it is worth checking with dad's lawyer, whether the power of attorney is permanent though. It may not be even though it was triggered and he was was cleary unwell and incapable before. It does get messier as people recover and he regains capacity.
I agree it may be worth having the lawyer confirm that it is in force right now... being dads lawyer & probably the person who prepared the EPOA, I suspect he would have said if it wasn't though... Also @Deidre has specifically looked & says that it is immediate with nil conditions & not subject to capacity...
Even people with diagnosed dementia can have days of relative clarity ........ Unless the EPOA has a condition that contains words to the affect of >>>> EPOA only applies during times of physical or mental incapacity <<<< then it doesn't matter if his condition fluctuates. it's in force & being enduring can not be revoked or amended by dad if/when he is declared to have lost legal capacity by the SAT
I don't think is permanent looking at Power of Attorney Act (Upon death ceases) , but reverts to executor which I am
Sure is in force immediately and also when loses capacity, as per EPOA document
He has not been incapable in past, or classified as, to date
The Act also stated that if commencement by attorney when incapable, that it can continue if becomes capable again as per Atticus
Sure is in force immediately and also when loses capacity, as per EPOA document
He has not been incapable in past, or classified as, to date
The Act also stated that if commencement by attorney when incapable, that it can continue if becomes capable again as per Atticus
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It really depends on the POA and guardianship laws in your state from what I can see. In Victoria, there has been a series of new laws and amendments which makes it important to double check, but it sounds like in WA, the bar is much higher and more formal than in other states. So in WA, a formal application to the State Administrative Tribunal is required if someone does not have capacity, and once the EPOA and POA is in play, then it is more or less permanent.
"If they choose for it to come into effect only if they lose capacity, an application will need to be made to the State Administrative Tribunal to confirm loss of capacity and declare the enduring power of attorney is in force".
- Enduring Power of Attorney frequently asked questions
Most of the rest of the states have an emphasis on supported decision making processes, and also the responsibility on the EPOA/POA person for a transparency on how wishes and decisions on the person's behalf. Showing that the decisions made were their wishes seems more important in those states. As the result, it is a messier process when the person regains capacity and decision making capabilities.
Victoria - "Principles to guide decision-making: Decision-makers acting for a person who lacks decision-making capacity under an enduring power of attorney must do so in a way that is least restrictive of that person’s ability to decide. They must ensure the person is given practicable and appropriate support to enable them to participate in decisions affecting them as far as possible. The Act requires an attorney to: give effect to the principal’s wishes; encourage the principal to participate in decision-making; and promote the principal’s social and personal wellbeing".
- Powers of Attorney Act 2014
It really depends on the POA and guardianship laws in your state from what I can see. In Victoria, there has been a series of new laws and amendments which makes it important to double check, but it sounds like in WA, the bar is much higher and more formal than in other states. So in WA, a formal application to the State Administrative Tribunal is required if someone does not have capacity, and once the EPOA and POA is in play, then it is more or less permanent.
"If they choose for it to come into effect only if they lose capacity, an application will need to be made to the State Administrative Tribunal to confirm loss of capacity and declare the enduring power of attorney is in force".
- Enduring Power of Attorney frequently asked questions
Most of the rest of the states have an emphasis on supported decision making processes, and also the responsibility on the EPOA/POA person for a transparency on how wishes and decisions on the person's behalf. Showing that the decisions made were their wishes seems more important in those states. As the result, it is a messier process when the person regains capacity and decision making capabilities.
Victoria - "Principles to guide decision-making: Decision-makers acting for a person who lacks decision-making capacity under an enduring power of attorney must do so in a way that is least restrictive of that person’s ability to decide. They must ensure the person is given practicable and appropriate support to enable them to participate in decisions affecting them as far as possible. The Act requires an attorney to: give effect to the principal’s wishes; encourage the principal to participate in decision-making; and promote the principal’s social and personal wellbeing".
- Powers of Attorney Act 2014
Not really.... while there may be minor differences in wording between states (legal capacity / decision making capacity for eg) they are all the same in as much as legal capacity is assumed until there is a declaration of some sort otherwise, & once legal capacity has been lost, the EPOA continues regardless (or until such time as a decision is made to remove it on the basis of a complaint of abuse for eg).... The whole point of an EPOA is so that it continues after legal capacity has been (formally) lost.... You can imagine how impractical & unworkable a POA would be if it relied solely on the capacity of the donor on a day to day basis... it would be an almost useless piece of paper...
The amendments you refer to, whilst adding some level of accountability on the part of a POA (in Victoria) to include the principal in decision making as much as is possible, the ultimate POA remains with the attorney unless formally removed & therefore it really doesn't matter if the principals condition fluctuates
Anyway.... In this case we have been told that @Deidre EPOA is immediate & unconditional
It does not sound like dad has been incapable in the past or formally have been assessed, so it may be worth getting formal clarification from dad's lawyer. It sounds like there needs to be a more shared decision making approach to the legal side of things as well - Substitute decision making in Victoria and the law
Hopefully the rest of the family etc will accept you as POA, which will make things easier - When Family Members Feud Over Power of Attorney
We have a alternative EPOA attorney if I don't wish to continue.
Also have a relative as 2nd decision Medical Maker so all is good there.
There is feuding from a family member that misused the EPOA and Medical for gain , so was revoked by Dad and we replaced her. It just gets extra extra messy when ex wife running rampant with trouble.
Disgusting when families feud about "their" money as a motive and try take advantage over all. Mutual attempts just don't work when greed is a motive.
I ensure Dad is involved in progress/written permission of what I'm doing and records kept.
Just need to now battle getting all legally sorted to restore behavioural order
Also have a relative as 2nd decision Medical Maker so all is good there.
There is feuding from a family member that misused the EPOA and Medical for gain , so was revoked by Dad and we replaced her. It just gets extra extra messy when ex wife running rampant with trouble.
Disgusting when families feud about "their" money as a motive and try take advantage over all. Mutual attempts just don't work when greed is a motive.
I ensure Dad is involved in progress/written permission of what I'm doing and records kept.
Just need to now battle getting all legally sorted to restore behavioural order
Hi Atticus,
I just wish to go back regarding the old conversation but relates to another relative's situation and her recent late partner.
You mentioned. As long as there is an application for settlement FILED with the court (even if you have to sign as his POA at this point) then in the event he passes, you could take over as his personal legal representative ..(Part 8 S79) FLA
FAMILY LAW ACT 1975 - SECT 79 Alteration of property interests
Can this application for settlement be filed prior to death, without any knowledge of the other surviving party, ?
So would the surviving party have to be aware prior to death of a property settlement in progress?
Suppose I am trying to comprehend in this case, can a deceased person prior to death file this form deceitfully and without any proof of separation was occurring or signature from surviving partner ??? Or signed consent orders would have to be in progress and filed for this to continue by a legal rep. ??
If a deceased arranged a POA (not wife) prior to death, could the POA have got the deceased to sign the form unknowing what they signed. Then it would proceed after death due to POA stating they were separated? Again only one party needing to commence proceedings ?.
Sorry if above sounds confusing to what I am trying to make sense of.
When a party files an initiating application, they must have first undertaken mandatory (subject to fairly narrow exemptions) pre action requirements that involve attempted dispute resolution with the other party...
A Genuine Steps Certificate must also be filed with the initiating application as proof that both parties have indeed been involved in a genuine attempt to resolve issues..
Even when an initiating application has been accepted, there would still need to be an acknowledgment of service & response filed from the other party.
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