VIC House Dispute & Power of Attorney

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Atticus

Well-Known Member
6 February 2019
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Person taking over is the executor named in the will. POA losses effect with the death of the maker.
Very good point above @Deidre ..... So while you can sign on dads behalf now (if he can't ) on a property settlement application, your POA will end if he passes & the executor named in his will (or appointed administrator as the case may be) will become a party to the settlement proceedings

Who is named as executor of his estate in his will?
 

Deidre

Well-Known Member
10 March 2020
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Was aware POA ended upon death and I am also Executor so all good.
But this info now backtracks to , if I can sign as POA for property settlement now and continue legal side as executor, then why necessary to go through that Legal capacity test?
 

Atticus

Well-Known Member
6 February 2019
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if I can sign as POA for property settlement now and continue legal side as executor, then why necessary to go through that Legal capacity test?
A question you should ask his lawyer if he says it's necessary....... As far as I am aware, as long as your dad understands the terms & affect of any legal document he is signing, then it shouldn't be needed. I guess the lawyer must already have some concerns... erring on the side of caution perhaps..

Great news that you are POA & Executor
 

Poidah

Well-Known Member
9 November 2017
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Qld
POA for property settlement now and continue legal side as executor
Because the divorce and property settlement is between dad and mother. So legal capacity is important so negotiations can keep going until it is settled.
So even if you are POA, I don't think you can proceed with the divorce and property settlement a sign consent orders as POA right? The marriage agreement is between dad and mother, I thought. So things will be in limbo if he does not have capacity until his death, and then the estate stuff kicks in? So it will be much messier as the there will be messiness between the property settlement and the estate, so that is probably why his lawyer wants the property stuff settled asap, so the estate stuff is easier for you after probably.
 

Atticus

Well-Known Member
6 February 2019
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if I can sign as POA for property settlement now and continue legal side as executor, then why necessary to go through that Legal capacity test?
Another thought.... Is it an ENDURING POA or just a POA?

An EPOA can continue after your dad has lost legal capacity, whereas just a POA can cease to operate in that event...

Also, sometimes an EPOA only comes into affect when the donor HAS lost legal capacity..... When does your E/POA say it takes affect?

It *Maybe* that the lawyer wants a legal capacity test so as there can be no question as to your authority as EPOA from other contentious family members... Best to just ask him why he thinks it necessary..
 

Deidre

Well-Known Member
10 March 2020
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I have Enduring Power of Attorney
Nil conditions, immediate, continues if subsequently becomes legally incapable.
I'm not sure now if as enduring can do? I did read somewhere divorce no but that maybe under POA not EPOA. But Divorce not issue now, just settlement. But if EPOA states "if becomes legally incapable" wouldn't that allow legal signing then?
I'm also gathering test is to cover from other members disputing . But IF he is now found not fully legally capable then Solicitor wouldn't do a settlement?
Oh the law is so complexed, but I love the challenge
 

Atticus

Well-Known Member
6 February 2019
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I have Enduring Power of Attorney
Nil conditions, immediate, continues if subsequently becomes legally incapable.
All good then.... Bit of a mystery then until lawyer explains why he wants it.... Makes sense if dad wanted to redo his will.
But IF he is now found not fully legally capable then Solicitor wouldn't do a settlement?
You have already said your dad is now wanting a straight 50/50 division.... His lawyer is quite within the law to act for him at dads (or you as EPOA if he is incapable) direction in property settlement. That's his job, & when an agreement is reached, (given that your power of authority already exists) you can sign any legal documents on his behalf.
 

Atticus

Well-Known Member
6 February 2019
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But if EPOA states "if becomes legally incapable" wouldn't that allow legal signing then?
This is the bit that's unclear..... You have said the EPOA is immediate.. If so that's all good. However if it states that it is only invoked on dad losing legal capacity, then that would explain why lawyer may want the test... so there is no dispute from family about your authority as EPOA .... Bit hard to say without seeing the document, but there should be a clause under the 'conditions' heading somewhere that explains when it is invoked?
 

Deidre

Well-Known Member
10 March 2020
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Says-Is subject to the following conditions, limitations and instructions-NIL
No separate conditions heading
Nothing about when being invoked- But I gather upon death stops?
 
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Atticus

Well-Known Member
6 February 2019
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Looks like it's in force already then.... If it only comes into force on legal incapacity then part B of paragraph 4 should be struck out... In that event the test would need to be done & a declaration from the State administration authority provided

Yes will cease to operate on death, but then your authority as executor of estate kicks in, so that will allow you (or a lawyer if you wish) to represent the estate in property settlement proceedings.
 
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