The Dangers In A DIY Power of Attorney
The danger of a DIY Power of Attorney was brought home again recently in a case we had.
Background
Several years ago, our clients decided, quite rightly, it was time to make an Enduring Power of Attorney. Unfortunately, they bought a Do It Yourself Enduring Power of Attorney and without any legal assistance, proceeded to “complete it”.
They then promptly filed it away in a drawer.
Several years later, the husband, who by then was suffering from dementia and other illnesses, had been placed in a nursing home. The wife needed to use the Enduring Power of Attorney to sell their home, which was in joint names.
The wife came to us for assistance in selling the family home. That is when the problems of the DIY kit came to light.
Problems
When we reviewed the Enduring Power of Attorney, the problems were many but the main ones were:
- The Justice of the Peace had not witnessed the husband’s signature to the Enduring Power of Attorney.
- The Enduring Power of Attorney was not registered in the Titles Office (which it must be when selling a home).
- There was no conflict of interest provision within the EPOA allowing the wife to utilise her husband’s share of the proceeds of sale towards purchasing a unit for herself.
Fortunately, we were able to overcome these problems but not without a great deal of stress and expense on the part of the poor wife who was by now herself elderly. At one stage it looked as though the sale of the house itself was in jeopardy which would have meant she could not have proceeded with the purchase of her unit and would have had to make an application to QCAT to be appointed guardian for her husband. You can imagine the stress and worry this caused our poor client.
Take Out
It is a timely warning, with so many DIY legal kits and online forms now available to the public (and they always make it sound so simple and straight forward to do) that, at the end of the day, if great care is not taken and legal advice obtained, people can come undone and in many cases, the cost to rectify the problem far outweighs the original cost in seeking professional legal advice and getting the job done properly in the first place.
If you need assistance in preparing a Power of Attorney, please do not hesitate to contact McLaughlin & Associate Lawyers on phone 3808 7777 or email us at business@mclaughlinlawyers.com.au.
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