FINANCIAL ABUSE OF THE ELDERLY – Powers of Attorney & Fiduciary Duties The incidence of financial abuse of the elderly is increasing. In this month’s Queensland Law Society Magazine – Proctor, Christine Smyth – QLS Accredited Specialist Succession Law and Tina Cockburn – Associate Professor QUT, analyse the decision of The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban & Anor, where an attorney was held to account for breaching her duties. It is important for attorneys to note that while acting as an attorney, you may undertake transactions which result in you also becoming a fiduciary, thereby imposing upon you equitable duties and exposing you to its powerful remedies. They are in addition to your duties under the Powers of Attorney Act 1998 (Qld) and/or the Guardianship and Administration Act 2000 (Qld). In their article Christine and Tina observe that where equitable remedies are available, the court has the power to look beyond the apparent legal ownership, to determine the true ownership in equity. This means that property that might be registered on title as belonging to person A, may in fact ultimately belong to person B. Equitable remedies are becoming increasingly important in Inheritance Law disputes, where the court can use the power of equity to untangle transactions undertaken during the lifetime of the deceased, with a consequential impact upon property that may or may not fall into the estate for distribution.
BIZARRE BRITS & BODY PARTS – FROM HIP JOINT TO STREET SIGN!
Are you thinking of donating your body parts? Well in England donating body parts now extends to the non biodegradable kind. This article reports on an English scheme whereby precious metals that survive the 1000 degree cremation process, are collected and sold on for recycling. Precious metal such as cobalt and titanium are on sold, with cobalt being used in aircraft parts and less precious metals, such as steel, from steel plates are used in street signs. The article reports that 75 tons of metal are recycled per year. I wonder if this scheme will gather momentum here?
HAS YOUR EXECUTOR LOST CAPACITY? IF SO BEWARE THEIR ENDURING POWER OF ATTORNEY MAY BE GRANTED PROBATE OF YOUR WILL.
Many clients approach their will as a “set and forget” exercise. There is much commentary as to why testators ought to review their wills regularly. Much of this commentary centres on the changes in financial circumstances. What is not commonly contemplated, are changes relating to the appointment of executor. Where it is considered, the focus is usually on the death of the executor. However, what clients often overlook, is like them, executors are living longer and with that, the incidence of lost capacity increases. This is especially the case where the executor is over 65. Testators should be mindful, that when you appoint a person as your executor, and that executor loses capacity, the executor’s Enduring Power of Attorney, may be the one who ends up administering your estate. The decision of In the Will of Bob Wild Deceased  QSC 200, considered this very issue. There the Supreme Court of Queensland considered various provisions of the Powers of Attorney Act 1998, Succession Act 1981, Trusts Act 1973 and Uniform Civil Procedure Rules 1999. In doing so it confirmed the Supreme Court has the power to Grant Probate to the Enduring Power of Attorney of an incapacitated executor.
It is important for you to note there are many significant differences between each of the States and Territories as to the powers exercisable by a power of attorney and rules relating to the granting of Probate. Before you make any decision with respect to the appointment of executor you should seek legal advice specific to your concerns. These differences between the States and Territories were highlighted in the recent South Australian decision of In the Estate of Keith Dudley (deceased)  SASC 22 . There, cross border issues were significant in determining whether a person who was resident in New South Wales, could apply for a Grant of Probate in South Australia relying upon an enduring power of attorney granted in South Australia by an executor who was resident in Queensland who had lost capacity.
The Gold Coast is primarily populated by people who have resettled from interstate. As one of the oldest firms on the Gold Coast, Robbins Watson Solicitors has significant experience in representing clients whose affairs traverse multiple jurisdictions. If you have assets in other jurisdiction we recommend you consult us with respect to addressing the issues this creates in your estate planning requirements
The NSW Parliament is currently debating the Rights of the Terminally Ill Bill 2013 (referred to in the media as the Assisted Dying Bill). Euthanasia is a topic shrouded in ethical issues, polarising opinions. One of the key concerns is abuse of vulnerable people, such as children and the cognitively impaired. Of course in my area of practice I frequently deal with elderly people whose cognitive impairment is in question. This cognitive impairment makes them vulnerable to undue influence, and unconscionable conduct by people they rely upon. It is quite prevalent in the context of Inheritance Law. So it was with much interest that I note the Bill has specifically sought to address this issue, by excluding people with Dementia from having access to the proposed scheme. Of course the obvious area of concern is its impact upon wills. The Bill does contain provisions related to the making of wills, and it also contains provisions dealing with insurance policies. If passed into law, it will impact upon the ever increasing complexities associated with Inheritance Law.
Click here to read more blogs of Christine Smyth
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