POA named as "Severally" but did not take it up

[KitnCaboo]

Hello:

My Mother asked me to set up a POA for her before she left Sydney for a Retirement Village in QLD.
(She also asked me to set up her Will & an EPOA for Medical Decisions at the time - which I did)
Mum was right. After about 1 & 1/4 years she quite quickly succumbed to Dementia and is now in Aged Care (& that's a whole 'nother bag of monkeys

Anyhow...She and I both thought her sister might be right to name on the form as being a "Severally" POA. (I was assuming also that that would mean I, the only one who's stepped up, would be in charge of Mum's affairs unless I became incapable, die etc. & then it would fall to her sister...Correct me if I'm wrong?...)

At that time, we notified her sister I sent the POA to her sister who lives in QLD.
Her sister, being the Ray of Sunshine that she is, did not respond.
As a result, I have a POA which only contains my official signature along with the local Court House's witness, her sister's name/address etc. but no signature and certainly no officially witnessed signature accepting the designation.

This means that its all on me, does it not?
That Sunshine Sister is not, in any way an officer of this POA?

Thank You all for your input. I apologize if I'm being dumb...
I grew up in Australia (QLD) but have lived in California for the past 25 years.
Its real fun taking care of Mum's stuff from here. I love a good 14 hour flight.

 

[Rob Legat - SBPL]

Was the Power of Attorney made on the Queensland form? If not, I'm not sure of the rules in NSW.

If it was made under Queensland law, then:
- She can't act as attorney until she has formally accepted the appointment by completing and signing the relevant part of the document ('Attorney's Acceptance').
- She can accept at any time.
- As long as you fulfil the requirements stated in the Power of Attorney, and 'severally' is selected, then you can act on your own. Be careful about any requirements which may negate this, such as a 'successive appointment condition' or similar.

 

[KitnCaboo]

Hello! I'm grateful for your reply!

Yes form was made in NSW & she now lives in QLD.

Just pulled out the forms again, I realize that she/we made 2 forms.
1. EPOA - on which I am the only one designated (I was asked to have this Notarized when I had to process the sale of her Retirement Village into Aged Care Residence. I recall no-one was much interested at the time in #2 below...

& 2. an "Enduring Guardian" form on which I am designated, (signed and witnessed) and sister is designated "Optional Alternative", (not signed or witnessed). The next page has one lonely boxed ticked "I appoint my Enduring Guardians to act severally". No other boxes ticked.

Am concerned about what powers sister may be able to wield if she upped and signed/witness this document?

Yes - "can act on my own" alright! I'm the only one who has stepped up to do any of the necessary "heavy lifting" (which both is and is not metaphoric heavy lifting! ....2 major house moves in just over a year - one from out of state...Car/Furniture sale and disposal, Banking requirements, Centrelink, Medibank, Drs, dealing with the Aged Care home etc etc. & I live in CA & feel like a foreigner to how things work in Oz anymore

Am mostly interested in how sister may have power to interfere if she ever chose to...?
(though it presently seems unlikely out of concern for my Mum since she's visited the Aged Care to see her only a few times in 1.5 yrs(?) & has never taken her out for a cuppa etc. Interference would be based on power issues in my estimation.

And I am curious for you to expand on your statement "Be careful about any requirements which may negate this, such as a 'successive appointment condition' or similar".

Again - grateful for access to smart people! I've been anxious to ask these questions for some time...

 

[Rob Legat - SBPL]

My understanding of the NSW provisions are that, similarly to Queensland, the person cannot act as attorney until they have formally accepted the appointment which may be done at any time.

If the sister properly executes the appointments then she has the full power of attorney from that point forward. Even though they are severally appointed, multiple attorneys are generally expected to reach agreement on the manner of acting and not to be in conflict. That would probably be considered a failure to act in the best interests of the donor - something that attorneys must avoid.

Regarding my statements about being careful about requirements, the manner and scope of appointment can be complex. It may be that there are only certain instances where the attorneys are authorised to act, or only upon certain events happening:

- They may be directed to act/not act in a particular manner (e.g. “Under no circumstances may my attorneys sell my house”).

- Even the dynamics of how the attorneys may act can be convoluted (e.g. “I appoint X, Y, and Z to be my attorneys on the basis that any two may act jointly, except where only one of my attorneys is present in Australia in which case during that time that attorney may act severally”, or “I appoint X and Y, jointly, to be my attorneys however where either X or Y are unable or unwilling to act as my attorney then I appoint the remainder of them and Z to be my attorneys, jointly and severally”). Admittedly those are uncommon examples, but not unheard of.

 

[KitnCaboo]

Thanks again!

I have often thought that avoiding the invitation to sign/witness the form from the outset is a fair example of "failing to act in the best interests etc...."

That's shockingly not what i understood though, when i agreed for my Mother to list her sister as "Alternative" & "severally" on the EG.
I was 100% under the impression that "severally" only triggered in the case that I died or became incapacitated etc . In fact, looking at the form again I quote from the left column instructions: "An alternative guardian is someone who you appoint to be your Enduring Guardian if your Enduring Guardian/s dies, resigns or becomes incapacitated". It does say on the next page what you stated - that they can make decisions separately, but I took it to mean one at a time.

In this case I hold an EPOA alone.
As I recall back in 2015 I thought we needed both an EG and an EPOA. Not sure why. I think I thought one was more for the financial side and the other more for the medical side but the EPOA has in practice outranked the EG. The retirement village was only interested in the EPOA to show I had authority to process the sale of her Unit. Bank also to manage her accounts wanted only the EPOA.

I doubt sister wants anything to do with it - judging by her character and lack of willingness make an effort thus far.

 

[Rob Legat - SBPL]

That's why a total consideration of the document is necessary. It could be that her appointment would only be in the alternative... or it could be that you're to act severally, but concurrently. It may be that it's clear in NSW, but in Queensland this would be stated as "successively".

If someone with experience with the NSW requirements and interpretation could comment, that would be appreciated.

As to the difference between the documents, Queensland has an Enduring Power of Attorney and an Advance Health Directive. The AHD covers some of the things that the EPOA cannot - such as tissue donation, 'do not resuscitate' and pregnancy termination. The EPOA can cover financial decisions and personal/lifestyle. I don't think there's a direct correlation, as it would seem the Guardianship fulfils the personal/lifestyle portion of the Queensland EPOA.