Legal Hypothetical: No ashes for attorney

JOAN was married to Patrick for 15 years.

Joan has three children from a previous marriage, being Brian, Angus and Julie.

When Joan began developing early signs of dementia, Joan and Patrick appointed each other as their enduring power of attorney.

The usual provisions of their power of attorney allowed the spouse to “confer benefits” on him or herself.

As Joan’s condition deteriorated, she told Patrick to “enjoy himself” as she knew his life would be centred around caring for her.

It was not long before Patrick took over Joan’s affairs as her attorney.

Out of Joan’s investments, Patrick purchased a new car to drive her to appointments and to do the weekly shopping.

Over the following years, Patrick also took respite holidays by himself; a cruise that they always wanted to do together, and a holiday Turkey, where they had honeymooned and a trip to the Ashes, a life-long dream for Patrick.

When Joan dies, it is revealed that Patrick had spent over half of her investments, which otherwise would have been inherited by her children.

Brian was very angry and as Joan’s executor, audited Patrick’s actions.

Although many of the expenses Patrick claimed were reasonable, and he thought he was acting with the blessing of Joan in taking overseas holidays, Patrick was required to pay a considerable amount of money back into Joan’s estate, as only reasonable gifts and living expenses are permitted.

Joan’s power of attorney could have included a power for Patrick to pay for respite holidays.

It is important to consider all the options when recording your attorney’s powers, to ensure all parties are clear on the powers that are granted.

Thank you to Anthony Fogarty for his assistance with this column. If YOU would like a particular issue addressed, please email Manny at [email protected] or call him on (02) 6648 7487.


By Manny WOOD, Solicitor.

Leave a Reply