True Story - Who is really looking after you?

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TRUE STORY:
Who is Really Looking after You?

Hello and Welcome!

My name is Peter Janssen and I have been a Solicitor in Australia for over 15 years. During this time I have encountered some amazing cases in this area. In this section, I discuss some of the true stories that have come across my desk. Obviously the names and circumstances have been changed to keep parties anonymous. You’ll get some valuable insights from these true stories.

Note: the information below is designed specifically for buying and selling property in Queensland. While some information may be of use to property transactions outside of Queensland we recommend that you seek legal advice before relying on any information herein.

The Facts

One day I received a phone call from a distressed lady whose husband was in hospital. She had been trying to access his bank account in order to pay for some medical bills, and for her own food and other expenses, but the bank was not allowing her to do so, because she was not a signatory to the account.

They had been married for many years and were in a stable relationship. They had 3 children, from 8 to12 years old. Her husband had been the General Manager of a large company, and still was, I guess, technically speaking.

What my client then told me is probably a lesson for all of us ‘high flying executives’. Let’s call her husband ‘Bob’. Bob was a workaholic. He was the State Manager for a large chemical firm, and his duties often meant that he worked weekends and late at night to meet deadlines. The family enjoyed a good income, but rarely saw him.

I looked at the piles of work on my own desk, and felt uneasy. She went on. Bob had been pushing himself on a big project for a couple of months. He had been complaining of headaches, but everyone put it down to stress and overwork. Pain relievers would make them go away, but they seemed to come back regularly.

A fortnight ago, Bob had come in to the office and by mid morning he had collapsed. He was rushed to hospital, suffering from a brain haemorrhage. He had remained in the hospital since then, wafting in and out of consciousness.

My Advice

Can Bob still understand what he is doing? I asked his wife. The reason that I asked this was because what she needed to get from Bob in order to look after his affairs was an Enduring Power of Attorney signed by Bob and selecting her to sign on his behalf.

But Bob could not validly sign this document unless he was legally capable of doing so, and understood what he was signing. Her reply was that she was unsure, but that he probably would be alright. I guess she was in a desperate situation.

‘Ok, let’s give it a go – but if he does not understand what he is doing, then I won’t be able to proceed.’ Was my reply.

The next day, I met with Bob’s wife in the Hospital waiting room. ‘You may get a shock when you see him’, she warned. ‘That’s fine, I’ve seen plenty of cases’ I lied.
What I saw did disturb me. Bob was lying there in a bit of a daze, with this huge bandage wrapped around his head. His head seemed twice the size that it normally would be, particularly around the forehead.

Then there was the long painstaking process of talking to Bob, to see just what his mental capacity was. This is a difficult thing to determine, and is subjective at best. Normally it helps to have a doctor present, who can also vouch for a patient’s capacity, or lack thereof.

I must have been there for two hours, with Bob’s wife looking anxiously on. It was a slow and tedious process.

What Happened?

You need to make sure your legal affairs are in order BEFORE anything unfortunate happens. It is usually too late to do anything about it afterwards. And it’s not enough to have just a Will, because a lot of bad things can happen to you short of death, that are completely unexpected. So you owe it to yourself and your family to have your affairs fully in order.

AND on a non-legal point: make sure you’re life is balanced – Bob would not have thought as he was lying in hospital ‘I should have spent more time in my business’.

My final decision was that Bob had enough mental capacity to sign the Enduring Power of Attorney, but it was a bit touch and go. The options for Bob’s wife had Bob been in a worse state would be for the Public Trustee to take over Bob’s affairs, and Bob’s wife would have had to liase with them for her needs and for any say regarding Bob’s affairs.

Needless to say, she made sure that she got an Enduring Power of Attorney straightaway for herself and her elderly mother.

As for Bob, perhaps the ending is not so happy. Unfortunately, in True Stories, happy endings can’t be assumed. Bob did not fully recover from his illness, and was placed into a full care facility. He was replaced at his company by a new General Manager shortly afterwards, which just goes to show all of us that we are replaceable!

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