VIC House Dispute & Power of Attorney

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Poidah

Well-Known Member
9 November 2017
90
3
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Qld
in WA legal capacity is decided by the state administration tribunal after reviewing a very detailed questionnaire conducted by a DR
If there is no capacity and no POA, then what you describe is the process to appoint a public guardian, which usually takes months. If his GP is happy with your dad's capacity, or a geriatrician is able to formally assess, there is no need for state involvement. State involvement is only when there are no decisionmakers and a public advocate/guardian needs to be appointed.

see your dads lawyer about taking one out if you are not able to yourself. You can do it on his behalf.
Ideally dad would sign the order, but you can co-sign you so there is no question of the legality of the intervention order even if dad's capacity is brought under question.
You might also get some help from the support organisations such as Carer's Australia, aged care advocacy groups as well?
 

Atticus

Well-Known Member
6 February 2019
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If his GP is happy with your dad's capacity, or a geriatrician is able to formally assess, there is no need for state involvement.
Just to be clear, so as not to confuse the issue for @Deidre ..... At the moment, her dad has legal capicity.. That is assumed by law until a proper, formal declaration says otherwise.... so , IF dad wants to change his will, he should have his lawyer visit him to do so.... If the lawyer raises concerns about his understanding of & affect of the document he's signing, then & only the issue of legal capacity may have to be looked at
Ideally dad would sign the order, but you can co-sign you so there is no question of the legality of the intervention order even if dad's capacity is brought under question
Again, so as to not confuse the issue.... as a family member & someone involved in his care, @Deidre can act on his behalf to apply for an intervention order... Even more so in this case as she is also POA
 

Poidah

Well-Known Member
9 November 2017
90
3
294
Qld
At the moment, her dad has legal capicity..
It sounds like dad is terminally unwell, so he will lose capacity. Also sounds like dad was acutely unwell, which triggered the urgent rush to hospital and now permanently to a home. So when he was unwell, it sounds like his POA kicked in and you are in charge. But now that he is recovering, it sounds like it is hard to know whether he has legal capacity or not.

But I agree with Atticus. It is better and easier to assume that dad has capacity, and to show evidence of his capacity as well. Get written and verbal instructions of his wishes with clear decision making reasons and background as much as possible so it is easier for you to decide later on.

Dad's lawyer should make that legal capacity assessment too. His lawyer knows him, and can also document dad's understanding and the decision making process. Palming it off to geriatrician and delaying things when an intervention needs to be filed asap is not good for dad by the sounds of it unfortunately.
 

Atticus

Well-Known Member
6 February 2019
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It sounds like dad is terminally unwell, so he will lose capacity ......... So when he was unwell, it sounds like his POA kicked in and you are in charge...... it sounds like it is hard to know whether he has legal capacity or not.....
Lets just go on the known facts.

1) Being terminally ill does not mean he has or will lose legal capacity ..... Legal capacity is state of mind, ability to understand documents etc... It's not being unable to (physically) attend to affairs because of an illness
2) A POA can allow the nominated attorney to act immediately, or at any time/event specified by the donor.... Deidre doesn't actually even need POA to act on his instructions regarding protecting his house or applying for an intervention order
3) NO.... he HAS legal capacity until such time as a formal declaration says otherwise ..... In any case, this is only an issue for dad IF he wants to change his will & the lawyer has concerns about his ability to understand the affects of what he is signing
 

Poidah

Well-Known Member
9 November 2017
90
3
294
Qld
known facts.
Unfortunately, the known facts is that dad's lawyer is not proceeding with what needs to be legally done and has suggested it instead.

spoke to solicitor today as wife causing more trouble and he suggested decision capacity also
Legal capacity is also dependent upon the assessment and confidence of whoever has to execute or follow the instructions. If someone is not confident about anyone's capacity, it can be informally questioned and instructions delayed until capacity is sorted out. So that more formal assessment and decision process with ongoing more binding consequences is what Atticus described earlier.

he HAS legal capacity until such time as a formal declaration says otherwise
It sounds like dad's lawyer is not happy with dad's legal capacity, and therefore has not proceeded with to draw up the legal intervention orders for dad (and you) to sign? So instead has asked you to proceed with the intervention order without providing legal help? I may not have understood it right?
So maybe getting your own lawyer would be helpful so your lawyer can draw up the intervention orders and get that process going? It sounds like you would need your own lawyer anyway to deal with your estate issues afterwards.
 

Deidre

Well-Known Member
10 March 2020
28
2
124
Hi
Doing intervention and hearing Tuesday as she had been in property, attempted second time and remained in property moving personal item and belongings. Prepared home for herself as wants all property within also. Registrar was more concerned about if any damage or theft as only grounds, and not the case of being against Dad's instructions and behaviour as acceptable reasonable grounds to do one.
I gather solicitor wants the test done to state his competency (prior to death) and to apply for some orders so I can continue if need be after , but which orders would he be seeking?
Mum wants all house, property inside and investments as believes in own mind upon death she will get, regardless of saying numerous times she wont get all inside or money in his name. Thus her attempt to act like a squatter now for inside of house.
Dad will now meet & look at 50/50 sale with lawyer as she can't afford to pay out or lend.
 

Atticus

Well-Known Member
6 February 2019
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149
2,394
Doing intervention and hearing Tuesday as she had been in property, attempted second time and remained in property moving personal item and belongings. Prepared home for herself as wants all property within also. Registrar was more concerned about if any damage or theft as only grounds, and not the case of being against Dad's instructions and behaviour as acceptable reasonable grounds to do one
good to see some progress... Yes theft & or damage to property are grounds for restarining order..
I gather solicitor wants the test done to state his competency (prior to death) and to apply for some orders so I can continue if need be after , but which orders would he be seeking?
So he has said he definitely wants a legal capacity test?

Interim orders... Injunction on her dealing with, selling or disposing of any real, personal or liquid assets .... As well as final orders for a 50/50 division of all investments & liquid assets after sale of house if that is what dad wants.. If he is ultimately declared as not having LC, then as POA, you can seek the orders on his (or his estate if he should pass away) behalf.
 

Deidre

Well-Known Member
10 March 2020
28
2
124
He mentioned Capacity to provide instructions re legal proceedings.
So the orders would make sense and why also he wants a legal capacity test, to put in place in case he passes and no settlement reached by then. Then if continues, the test cannot be disputed by other parties who may attempt he was not legally capable. Ok!
I had read somewhere , correct if wrong, that if the orders commenced and one passes that they still can stand legally? I think I read this when looking at Divorce side, orders commenced and one party dies.
If so, would it have to be to the point of both parties have signed or just one commenced .

I so appreciate all the amazing assistance by all, as this has been a nightmare at its worst. Still along way to go yet, but the assistance has eased the stress side of processes!
 

Atticus

Well-Known Member
6 February 2019
925
149
2,394
He mentioned Capacity to provide instructions re legal proceedings.
Okay thanks, that's clear now.... In that case I would be taking instruction from him on how to go about that in the quickest, most efficient way possible. He should be able to advise/ recommend something if he considers it necessary
I had read somewhere , correct if wrong, that if the orders commenced and one passes that they still can stand legally? ......... If so, would it have to be to the point of both parties have signed or just one commenced
As long as there is an application for settlement FILED with the court (even if you have to sign as his POA at this point) then in the event he passes, you could take over as his personal legal representative ..(Part 8 S79) FLA
FAMILY LAW ACT 1975 - SECT 79 Alteration of property interests

(8) Where, before property settlement proceedings are completed, a party to the marriage dies:

(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

Lawyer needs to get something filed ASAP, I'm sure he knows that
 

Rod

Lawyer
LawTap Verified
27 May 2014
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... then in the event he passes, you could take over as his personal legal representative
Person taking over is the executor named in the will. POA losses effect with the death of the maker.
 
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