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  • Writer's pictureShane Ellis

The Round - To - It Approach To Estate Planning Is Safest!


Part 1 - A half baked potato is still a half baked potato!


I sat there stabbing away with my fork, but there was nothing I could do to alter the situation...the middle of my spud was rock hard...quite simply a half baked potato is still a half baked potato - and in the legal world, a half baked job will likely result in HUGE costs both emotionally and financially when trying to rectify that which may not even be able to be rectified.



Let me give you a real-life example where the names of the people involved have been altered to protect the identity of the clients.


My clients, the “good intentionalists” were all top people, a close and loving family consisting of Mum, Dad, their Son and their Daughter. After Dad had died a few years back, Mum needed to update her Will, but no one had physically checked the current Enduring Power of Attorney (EPOA) she had in place! (Your Will applies to your asset distribution when you die; whereas if you are still alive and you have lost legal capacity, the Enduring Power of Attorney (EPOA) states who will step into your shoes to protect your interests as your legal attorney). Mum had answered correctly that she did have an EPOA, unfortunately though it was ineffective.


You see, the EPOA she had in place appointed Dad as Mum’s attorney but it did not have any replacement for Dad, if Dad had died or could not act for Mum for any reason, such as if he had lost his legal capacity.


When we met to rectify the problem, I remember the clients telling me that Dad was very proud because he had bought the EPOA template on the internet for just $295.00 + GST, he had filled one out for himself and also one for Mum. They got it signed in front of a JP at the police station, but no-one thought about what would happen if either Dad or Mum, could not act for the other spouse - which was a giant legal half baked potato of a nightmare waiting to happen!


I remember the meeting clearly as it was in my boardroom, and the 'good intentionalists’ Son and Daughter had brought Mum in to get a new EPOA done. The kids waited in reception having a cup of coffee whilst I privately saw Mum. The problem was that Mum, did not have legal capacity. When I asked Mum a number of open-ended questions about simple current affairs, and her family and life matters, she was unsure of her answers, and was mostly wrong when she did provide an answer. I politely excused myself, and I went to speak to Son and Daughter. The Daughter then explained to me that they had been meaning to see me for over 18 months and that Mum had failed a mini-mentals test on the past two occasions over the previous 6 months when she had visited with her treating GP, who had been looking after Mum as her doctor for over 27 years.


In the legal world prevention is not only better than cure it is also much, much cheaper! The cheap online EPOA that Dad had done was $330 in round figures; for me to do the EPOA and supporting documentation would have been $880 including GST.


Now, to rectify the situation, an Application would have to be made to the Queensland Civil & Administrative Tribunal (QCAT) to appoint attorneys for Mum. With no filing fee, my time in preparing the Application including all supporting material had cost close to $6,600 OUCH!


Son and daughter were happy to pay my legal fees because they were each medical specialists, and they did not have the time out of their busy professions to make the application for Mum (nor were they comfortable in preparing the material or in appearing at the QCAT hearing). I sat with them all through the hearing, which was by phone link from QCAT to my boardroom. The member from QCAT who heard the matter, was very caring and understanding and made an appointment of both son and daughter to jointly be Mum’s EPOA.


I truly know we are all busy in our lives, and each of us has priorities. With the delay in bringing Mum in to get her EPOA done, it had cost a lot more in time, emotion and money to get the QCAT EPOA order. The clients left my offices, very happy that it had all been sorted out.


Digger (my law firm’s guardian mascot & watchdog), just looked up at me, yawned. & with his wise eyes said to me: ”Procrastination is unfortunately not just the thief of time but also the robber of family wealth when the unexpected arrives for the unprepared!”


He then did what he does best, rolled over and went back to sleep.


Click below to download a Round-To-It Estate Planning checklist to ensure that your estate and wealth protection affairs are up to date!

Round-To-It Estate Planning Checklist
.pdf
Download PDF • 62KB

. . . and stay tuned next week for Episode 2 – I’ll Have Fries With That!

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