Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 3 October 2015.
Jack and Jill are in their late 60s and have been married for more than 30 years. They reside in the family home that, over the years, has housed themselves and their four children.
Jack and Jill are conscious of the importance of making wills and they consult a solicitor who informs them that their wills only come into effect upon their death and their wills appoint an executor to administer their estates.
The solicitor asks them to consider executing a power of attorney which allows them to appoint an attorney to manage their financial affairs, including facilitating the sale of their property, should they lack the capacity to do so themselves. Jack and Jill do not wish to incur the additional expense of a power of attorney and decide that they will worry about this later.
Unfortunately, Jack suffers a stroke a couple of years later whereby he loses the capacity to enter into a contract.
Jack’s condition means that he is unable to maintain the matrimonial home and Jill decides that the property needs to be sold so that they can relocate to more suitable accommodation. She also needs additional funds from the sale the property to meet the costs involved with Jack’s condition.
Jill consults their solicitor with a view to preparing a contract for the sale of the property so that she can market the property using a local real estate agent.
The solicitor advises Jill that because the property is owned as joint tenants, Jack will need to sign the contract for a sale to proceed.
The solicitor informs them that Jill could have used a power of attorney to sign the contract on Jack’s behalf and after registration of the power of attorney with Land & Property Information the sale could have proceeded relatively easily.
Jill now needs to lodge an application with the Guardianship Division of the NSW Civil & Administrative Tribunal, seeking a hearing to appoint her as Jack’s financial manager. Her appointment is monitored by the NSW Trustee and Guardian and the process is stressful and time-consuming.
