How do you choose a suitable power of attorney?

Estate planning expert Rod Cunich answers your questions about power of attorney powers.

How to choose a power of attorney

Estate planning expert Rod Cunich answers two questions today about members’ power of attorney issues.

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Q. Bernie*
I have two children with disabilities and no other family. I am 84 years old. My solicitor is executor for my will, but I have nobody to take on the role of enduring power of attorney. What would you suggest?

A. If there is no family or friend willing to take on the role, then you’ll have to approach the public guardian in your state. Each of these bodies has staff who will provide the service. I’d recommend that you make an appointment to see your local public guardian at your first opportunity, so that you can find out what they can offer. If you have sufficient funds, you might also consider one of the commercial trustee companies, many of whom offer excellent services – but at a significant cost.

•••

Q. Wanda*
My partner and I made new wills, enduring guardianship and power of attorney documents in NSW last year. We have now relocated to Queensland and our NSW solicitor advised that we need to update these documents with a Queensland solicitor to reflect our new address/state. Can you please advise if this is necessary?

A. It is rarely necessary to change your will merely because you change the state or territory you live in within Australia. There may be incidental reasons that require changes (they are too obscure to attempt to cover in this reply).

I’d recommend having a solicitor check your will to see if there is a particular reason for changing it, just to be certain. Each state and territory has its own laws governing enduring powers of attorney and enduring guardianship and, as a consequence, the documents vary in both form and substance from state to state. 

There is no urgent need to swap over to the local version of these documents as each jurisdiction largely recognises the documents from other states and territories, although if your document purports to grant a power not available under the law in your new jurisdiction, then problems can arise.

I’d recommend that when you have the time that you re-do these documents, so they comply with the law in your new location. Making the change may avoid uncertainty and will assist with your (new) local authorities, who may not be familiar with the documents from other jurisdictions.

* Not their real names.

Rod Cunich is a lawyer and author with more than 30 years’ experience who specialises in estate planning. If you have a question for Rod, simply email it to newsletters@yourlifechoices.com.au. His book, Understanding Wills and Estate Planning, has recently been updated and is available from all good bookshops.

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    COMMENTS

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    Triss
    25th Sep 2019
    11:17am
    Research the Public Guardian very carefully first.
    casey
    25th Sep 2019
    11:38am
    You are spot on there Triss. I know from bitter experience that The State Trustees in Victoria are not as you would believe a government organisation. They are a privately owned mob of rip off merchants. Stay well clear.
    Crimmo
    25th Sep 2019
    11:26am
    One Nation we are not.
    Crimmo
    25th Sep 2019
    11:26am
    One Nation we are not.
    adbob
    25th Sep 2019
    3:49pm
    What is commonly overlooked when appointing offspring as EPoA donees (to use the current SA term - previously 'attorneys') is that there is a fundamental conflict of interest between them as donees and the same people as beneficiaries in your will - ie why would they put you into a more expensive care home when it would deplete their eventual inheritance more than a cheaper one would?

    People often have a rose-tinted image of their offspring derived from the time when they were dependent children. As adults they have their own needs and priorities. Some extended families stay close - others don't and are only drawn back together when inheritance etc comes into the picture.

    The words quoted by Brian Clough on the advice of his former boss and mentor when he eventually took charge of his own UK football club as manager in his own right spring to mind:

    In this game trust no one - and when this telephone conversation finishes don't even trust me.

    Sorry if that's not helpful but the general advice (from the legal fraternity) that everyone should have a valid will and EPoA (and we'll do you one for only a small fee) should be qualified by MIles na Gopaleen's (aka Flann O'Brien's) advice on knees: A bad knee is worse than no knee at all.

    In other words be sure of what you are doing and keep it all up to date. A lot of old people are being ripped off by their own offspring in their final years when EPoAs are invoked against their will.

    Check out the Norman Wisdom case. Personally I tend to believe the original exposé. Once his offspring got their hands on his (considerable) dough they ran a media and libel blitz to clear their names. Personally I don't buy that. He was a rich man and he would rather have stayed in his beloved home and have had extra care brought in. He could easily afford it. Instead they packed hime off into a home.