KAREN is concerned that her elderly mother, Mary, is lacking the ability to manage her affairs.
Karen makes an appointment with a solicitor, with a view to drafting a Power of Attorney and an Appointment of Enduring Guardian for Mary.
Karen is present at the appointment with the solicitor and she does most of the talking.
The solicitor obtains instructions to prepare the documents, appointing Karen and her sister, Tanya, jointly and severally.
Mary executes the documents and Karen signs the acceptance, in the presence of the solicitor.
Karen decides that Mary should sell her home and pay Karen $300,000 for the right to stay with her for life. Unfortunately, they do not enter into a formal Granny Flat Agreement.
Contracts for the sale of Mary’s home are exchanged and Karen signs the contract on Mary’s behalf under the Power of Attorney. Karen signs an irrevocable authority for the $300,000 to be paid into her own bank account.
When Tanya hears of the developments, she makes further enquiries.
Tanya discovers that because there is no written Granny Flat Agreement, Mary stands to lose her Centrelink pension.
Tanya makes an application to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), seeking a review of the Power of Attorney and seeking orders appointing her as Mary’s sole financial manager.
The evidence before NCAT, indicates that there were no medical reports obtained regarding Mary’s capacity to execute the Power of Attorney and concerns are raised that Mary did not receive the proper advice from the solicitor due to the presence of Karen, during the process.
Whilst she is successful in her application, Tanya discovers that NCAT does not have the power to prevent the sale of Mary’s home and that it is the Supreme Court of NSW that holds the jurisdictional power.
Karen and Mary’s relationship sours as a result of the NCAT application and Tanya looks into Aged Care accommodation options for Mary.
Tanya discovers that if the sale proceeds, Mary could also face increased Aged Care fees.
Tanya, as Mary’s tutor, sues Karen in the Supreme Court.
Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.
This fictional column is not legal advice.
By Manny WOOD, Solicitor
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