I have seperated from my de facto partner and need to initiate a financial/property settlement which includes a family business a combined self managed super fund, child support and potentially spousal maintence. Last year the ex went into rehab and his father became power of attorney. When it comes to negotiating these financial matters either by agreement through mediation or application for court orders do I engage with my ex partner or his father as he is primarily his financial controller.
Power of attorney and financial settlements
- Thread starter Erin Valentine
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- power of attorney
He’s out of rehab now but the enduring power of attorney arrangement is still in place. I have a copy of the document and it wasn’t conditional upon him completing rehab.
Given the complexity of the situation, I most strongly suggest getting
the fully considered, case specific advice of your own lawyer.
Among other things, a Power of Attorney being granted to somebody
does not in itself place the donor under a legal disability.
Rather, it works in the other direction. It allows somebody to act on behalf of the donor
when the donor is without capacity (such as when ill, or imprisoned, institutionalised,
or simply, say, overseas).
The bit to understand is that a Power of Attorney does not itself create that incapacity.
So, a person can be, say, out of hospital, and doing their normal, everyday thing,
on their own account, even if the Power is still in place.
All of which makes it hard to give you a simple answer.
You're on the right track - in that somebody will indeed need to be the Respondent
(the person on the legal "receiving end") in what you're trying to do.
But who that should be in this case.... and whether it can (or should) be the principal,
or their Power of Attorney holder, and whether or not it can (or should) be same person for business and personal aspects...
those are questions for a properly instructed lawyer who can get across all the facts and circumstances.
the fully considered, case specific advice of your own lawyer.
Among other things, a Power of Attorney being granted to somebody
does not in itself place the donor under a legal disability.
Rather, it works in the other direction. It allows somebody to act on behalf of the donor
when the donor is without capacity (such as when ill, or imprisoned, institutionalised,
or simply, say, overseas).
The bit to understand is that a Power of Attorney does not itself create that incapacity.
So, a person can be, say, out of hospital, and doing their normal, everyday thing,
on their own account, even if the Power is still in place.
All of which makes it hard to give you a simple answer.
You're on the right track - in that somebody will indeed need to be the Respondent
(the person on the legal "receiving end") in what you're trying to do.
But who that should be in this case.... and whether it can (or should) be the principal,
or their Power of Attorney holder, and whether or not it can (or should) be same person for business and personal aspects...
those are questions for a properly instructed lawyer who can get across all the facts and circumstances.
If it was me, I'd be making the ex the respondent, serving any necessary papers on the respondent, and let the respondent sort out his end. It may well be the situation the father gets involved on behalf of his son, but I don't see that as your problem to sort out.
I'd also consider a lawyer as you have an all encompassing claim to make (parenting, property - with a business, maintenance).
I'd also consider a lawyer as you have an all encompassing claim to make (parenting, property - with a business, maintenance).
Thank you all for your advice. There is a family violence order in place and my ex has refused to share relevant information with me this far so it would be a more reasonable option to negotiate with his father if that was possible. His father still controls all of the ex’s money to the point of transferring him cash as needed for petrol food etc. so the ex has no access to his own cash anyway.
I’ve tried to get legal aid but they won’t help me with financial matters and I can’t afford a private lawyer, I’m left with nothing and at risk of homelessness so my option at this point is to start with mediation/dispute resolution before self representing in court. Either way I will be forced to negotiate with an abusive ex and that isn’t a practical solution.
What State are you in? Is there a house involved in the split as well as the family business? Any kids?
I’m in Victoria. We have a 2 year old son together. There is no house but there is the landscape gardening business we started together with the money from the sale of my house that I had before I met him and there is the combined SMSF that he invested in some start up business in Hong Kong. I have no idea how to go about getting it back and I’m pretty confident the fund is not complying with super laws.
Who is running the business now? Who is trustee for the super fund?
Does you ex have any resources/assets?
I am wondering how much effort you should be putting in if there are no worthwhile assets and he has no income.
Might be worth a call to Mulligan Lawyers 1300 68554426 to see what assistance they may be able to provide. Tell them Rod suggested you call.
Does you ex have any resources/assets?
I am wondering how much effort you should be putting in if there are no worthwhile assets and he has no income.
Might be worth a call to Mulligan Lawyers 1300 68554426 to see what assistance they may be able to provide. Tell them Rod suggested you call.
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