Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 4 November 2017.

Lindy, aged 88 is becoming forgetful and needs some help in managing her financial affairs.

Lindy is widowed and has no children.

Lindy’s nephew, Ben, talks to her about executing an Enduring Power of Attorney to formalise his ability to manage her finances. This would allow Ben to access Lindy’s bank accounts and buy and sell property on her behalf.

Ben discusses his proposal with Lindy’s solicitor, who states that a report from a geriatrician will be required, to assess Lindy’s capacity, before the solicitor will draft the documentation.

Ben has recently become unemployed and is having difficulties maintaining his $260,000 mortgage.

Ben is not happy with the solicitor’s advice and makes a booking for Lindy to see another lawyer. Ben drops Lindy off to the appointment and later picks her up.

The new lawyer has no knowledge of Lindy’s history and proceeds with the preparation of a power of attorney appointing Ben, which on the same day, is executed by Lindy.

Lindy also gives the lawyer a letter stating that she wishes to give Ben a gift of $260,000.

The next day, Ben as Lindy’s attorney, withdraws $260,000 from Lindy’s account and pays-out his mortgage.

When Lindy’s stepdaughter discovers the withdrawal, she commences proceedings against Ben, to recover the funds, claiming undue influence, unconscionable conduct and a breach of “fiduciary” obligation.

By the time a hearing date is set, Lindy has sadly passed-away.

At the hearing, Ben says that the funds were a gift and of course, Lindy is not available to present her side of the story.

After a lengthy hearing, the court rules against Ben on all counts and orders him to pay $260,000 plus interest into Lindy’s estate.

The debt is ordered to be secured by way of a “caveatable” charge on Ben’s home, owned jointly with his wife, which can now be sold by a “trustee for sale”, to repay the debt.

If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.