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Barrister Khan
Barrister Khan, Barrister
Category: Family Law
Satisfied Customers: 7
Experience:  Excellent legal grip
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Can anybody help me with Australian law? And are all

Customer Question

Hello, Can anybody help me with Australian law? And are all questions published on this website?
Submitted: 4 months ago.
Category: Family Law
Expert:  Barrister Khan replied 4 months ago.

Thank you for your message.

Which site are you referring to? I am well versed with Australian laws and will be happy to assist. Please let me know how I can help?

Regards

Naveed

Barrister

Customer: replied 4 months ago.
The Just Ask Website.
Expert:  Barrister Khan replied 4 months ago.

Do you have a question relating to Australian law?

Customer: replied 4 months ago.
I would need to speak to my sister first as she is also involved in this issue. A phone call might be preferable. I will call back. Thank you.
Expert:  Barrister Khan replied 4 months ago.

no worries thank you.

Customer: replied 4 months ago.
I have a membership, so I understand all further questions do not incur charges. Your offer to talk over the phone indicates that there is a further charge. Is this correct?
Expert:  Barrister Khan replied 4 months ago.
Hello
Please read correspondence above. I have not made any offer regarding phone call. I am happy to answer your question for the price which has been set for this question.Regards
Naveed
Barrister
Customer: replied 4 months ago.
Sorry for the delay in responding. I have been ill this last few days. Are you still available to discuss my issue relating to Australian Law?
Expert:  Barrister Khan replied 4 months ago.

Please state your question. Thank you.

Customer: replied 4 months ago.
Hello. I wanted to ask about an Enduring Power of Attorney. My mother had an EPOA written up many years ago, making my brother the sole attorney. I believe she had made him the sole attorney at the time because he was the only person present when she had made up her will. Then in 2010 she made up a new EPOA making all her three children co-attorneys with a 2/3 majority ruling. My brother willingly signed this later EPOA accepting his role as a co-attorney. Some time later in 2010 my mother was diagnosed as being in the early stages of Dementia. Three years ago she moved in with my brother after my father passed away and my brother began taking money out of her bank account via her ATM card (something my mother never knew how to do. Our father had handled the banking when he was alive) and when asked about it was unable to say what he'd taken the money for. The remaining two attorneys set up her accounts such that any withdrawal would need a second approval going forwards. My brother didn't like this and attempted to have the EPOA overturned (twice) and gain sole control of Administration and Guardianship. Both times it was expensive for us to fight this with legal fees as we wanted to be represented legally to ensure the best result. He has told us that he is going to be trying again. I believe him. I believe the next time he will attempt to have our mother write up another EPOA making him the sole attorney again. Whilst my mother's mental capacity has diminished considerably over the past few years, she still has the occasional "good" day and as my brother would be grooming her daily, it's possible that he may be able to get her to agree to write a new EPOA if he managed to convince her that it would be a good idea. If he can get a solicitor to say that she appeared to know what she was doing on that particular day, and managed to get our mother to agree to write this, would it be likely to stand up in court?
Expert:  Barrister Khan replied 4 months ago.

Thank you for you message.

Please note, any subsequent EPOA will revoke the earlier EPOA automatically and the new document will be in force. However, with respect to your particular query, it seems that your mother may not have the mental capacity to fully understand and appreciate the consequences of executing EPOA in your brother's favor. Note that for an enduring power of attorney your mother must be able to understand:

  • the consequences of preparing the enduring power of attorney
  • that she may specify or limit the power to be given to her attorney, and instruct her attorney about the exercise of the power in the enduring power of attorney
  • when the power begins
  • that once the power begins her attorney will have full control over the exercise of the power (subject to any terms in the enduring power of attorney)
  • that she may revoke the enduring power of attorney at any time while she has capacity to do so
  • that the power continues even if she loses capacity
  • if she loses capacity she is effectively unable to oversee the use of power.

When doubt arises over whether a person has the capacity to make an enduring power of attorney, the Queensland Civil and Administrative Tribunal (QCAT) can make a decision about that person’s decision-making capacity.

You may consider challenging that in the tribunal and providing reasons (medical documents) why the power to execute such document by your mother stands sufficiently restricted.

Furthermore, note that in rare cases, attorneys who have spent assets unwisely or sold the family home inappropriately. In such cases, the Public Guardian has the power to investigate an attorney and has several options available to resolve the matter to best protect the adult concerned. Additionally, QCAT or the Supreme Court can remove an attorney or revoke an enduring power of attorney.

Hope the above helps. Please do not forget to rate me for my answer as this is the only way I get recognized for my service on this website. Thank you.

Regards

Naveed

Barrister

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