Selecting an Enduring Power of Attorney is something that many people will have to face, but in the instance of one case, some will fight to overturn the decision to bring their services into effect.
A 91-year-old woman recently attended a hearing at the Supreme Court of New South Wales, after a decision was made to move her from her home to a local aged care facility. The women is a widow and although she has two sons, neither of them live close by.
Once the process of moving her to the facility got underway, a friend who she was socially dependent on was given Enduring Power of Attorney. An intervention by the Tribunal determined that this individual was in the position to buy the woman’s home for $100,000 less than the current market value.
An interim financial management order had also been made under the Guardianship Act, which effectively committed the governance of her estate to the NSW Trustee. However, the plaintiff proposes that she was capable of managing her own financial affairs at the time, and continues to be in the present day.
The courts determined that if her estate did need to be managed, then the NSW Trustee would be the most appropriate choice. This is because no alternative manager has been put forward, nor is there one who is available to take up the position. One of the plaintiff’s sons lives in New Zealand, while the other suffers from a disability and currently resides in a care facility in Sydney.
Court notes show that the plaintiff demonstrated “strong antipathy to her estate being managed by a protected estate manager of any description”, mainly due to her own autonomy and dignity. The judge stated that the woman is disabled within the meaning of the Guardianship Act, namely because she is vulnerable to exploitation, physically incapable of living alone and has a notable hearing problem. As a result, she is restricted in one or more life activities.
In light of this, the judge ruled that the plaintiff is not capable of managing her own financial affairs. This means there is a need for a financial manager, or someone to act on her behalf. Nevertheless, she should be given the freedom to manage her pension income without the need for daily supervision.
This case highlights just how important it is to have later life provisions in place. Inheritance disputes and problems relating to guardianship aren’t uncommon, which is why you need to take the necessary steps now to avoid problems further down the line.
