Jack and Jill are in their mid-60s. They have three children and modest assets consisting of their jointly owned home, some superannuation and a small amount in separate fixed term deposits. Jack and Jill want to ensure that when one of them dies, should the survivor lack the capacity to manage their finances, that an appropriate person is appointed to fulfil this role.
One of their children, James is a local accountant and they would prefer that he looks after the survivor’s finances if and when the need arises. Jack and Jill see their local solicitor who advises them that they should execute a document called an Enduring Power of Attorney. The solicitor suggests that Jack and Jill appoint each other as their attorney and their son James as their alternative attorney.
This means that if one of them lacks the capacity to manage their finances, then the other one can do so, but James is recorded as a “backup”. Jack and Jill decide that it is practical to appoint each other as their immediate attorney. They choose however, to appoint James only in the event that their GP forms the view that they require assistance. The Power of Attorney also contains provisions that allow their attorney to use funds held in their sole name for the benefit of each other.
Jack and Jill are concerned that their other children, who have a record of poor money management, are not permitted to manage their finances down the track and are comforted to know that James will be the only person authorised to manage their finances. They are also comforted by the fact that the Guardianship Tribunal need not be involved and that their wishes will be respected.
It is important to appoint an attorney who will do the right thing. You attorney must only act in your best interests, but has the legal power to access your bank accounts and enter into transactions on your behalf such as buying and selling real estate. Your individual circumstances may differ and accordingly, this column cannot be relied upon as legal advice.
