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The importance of a power of attorney

12 April 2017

Your husband Robert suffered a stroke three weeks ago and is in hospital. The doctors tell you that Robert is suffering from memory loss. His prognosis is not good and several weeks later Robert becomes extremely ill. The doctors tell you Robert has lost mental capacity and transfer him into high care.

You and Robert own a farm outside of town, which you now need to sell to enable you to purchase a small unit in town, close to Robert, and to pay for ongoing medical bills.

You make an appointment to see a solicitor about selling the farm. The solicitor tells you that as you and Robert own the farm in joint names, both of you will need to sign the necessary documents to sell the farm. You explain Robert’s situation, to which the solicitor says “that’s ok Mary, we can exercise Robert’s Power of Attorney, so you can sign on his behalf”. You suddenly realise that you and Robert never got around to getting that power of attorney done when your solicitor suggested it 12 months ago.

A power of attorney is a legal document that allows another person, the attorney, to act on your behalf, allowing them to make financial decisions for you. For example, an attorney may sell real estate or use money in a bank account to pay bills.

It is important to make a power of attorney before you need it. Once you have lost mental capacity, you cannot make a power of attorney because, for it to be effective, you must be able to fully understand what you are signing.

In the above scenario, it is too late for Robert to get a power of attorney as he has lost mental capacity. The only way for Mary to sell the farm now is to make an application for the appointment of a financial manager through the Guardianship Tribunal.

The application process can take several months as the Guardianship Tribunal gathers all evidence, makes enquiries and holds a hearing in which a decision to appoint a financial manager is made. 

Author: Michaela Schmidt

This article is general information only and should not be relied on without obtaining further specific information.

Michaela Schmidt Business Lawyer / Director

Michaela Schmidt is a Business Lawyer with expertise in commercial matters matters including issues relating to succession, trusts and property. .. Learn more about Michaela Schmidt

Click here to contact Michaela Schmidt.

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