In the September edition of The Diary in the feature section “Say I Do in Warrandyte”, Aaron Farr of the law practice Rush & Hampshire advised couples contemplating marriage to give thought to appointing Powers of Attorney (POAs) to manage your financial affairs and make medical treatment and accommodation decisions on your behalf should you lose your decision making capacity and ability to give consent.
What follows is a real life case study of what happened to an 81 year old friend of mine I will call Bill (to protect his privacy), who stubbornly refused to grant both his financial and a medical powers of attorney when he had capacity.
In recent years Bill’s physical condition deteriorated, he needed the assistance of walking sticks to get around and his mental condition was also noticeably deteriorating. Family and friends pressed him to grant his powers of attorney to either a close friend or a family member before he lost the capacity to do so. He stubbornly refused even after a family member flew over from the UK with the necessary documents for him to sign, but still he refused to co-operate.
Bill, who lives in a small Victorian country town, was still driving in spite of a number of close shaves with white posts and deteriorating eyesight much to the horror of family and friends. Very early in the morning in June, Bill set off driving alone in his car to Melbourne for a pre-op appointment with his specialist in relation to a planned knee replacement operation, refusing offers from friends to accompany him on the trip. There was snow and ice on the road and poor visibility, but Bill often chose to drive in the dark so he could follow the tail lights of the vehicle in front of him.
The next we heard of Bill was that he had been admitted to casualty in the Melbourne hospital where his appointment was to take place, following a fall and suffering concussion somewhere in the city centre. Fortunately, the hospital was able to contact his younger brother in the UK, a close friend from my university days, who informed me of Bill’s plight and thus I became the key representative to deal with what subsequently turned out to be an extremely difficult and frustrating situation, in short – a nightmare.
When I visited Bill he had suffered a severe knock to his head, had great difficulty in speaking clearly and little memory of what had happened other than to claim he had been “pushed over by a terrible woman” and hit his head on the pavement.
It took quite some time to discover where Bill’s car was located. He claimed he had driven to a town on the Hume highway and had left his car at the railway station. We still do not know whether he caught a train or a bus to complete his journey to Melbourne.
Phone calls were put through to the police and they identified his car parked near the railway station which was locked but clearly identifiable by the number of dints in the paneling on the passenger side where Bill previously had altercations with guide posts along the roadside.
Fortunately a friend of mine was travelling north along the highway a few days later and found the locked car but short of breaking the glass could not access the vehicle. Without the electronic keys, the car could not be moved, the local locksmith could not assist without authority from the owner, and the police were not really interested.
Adding to our woes was the discovery that although the hospital had logged the car keys in with Bill’s other possessions when admitted to casualty, they could no longer be located. This was a real blow, so the next port of call was a VW dealership to arrange for a new set of keys to be ordered from Germany. Then another brick wall, the dealership needed Bill’s authority to order the keys as I had no authority and according to the hospital neurologist, Bill no longer had capacity to give consent.
The VW dealership then delivered another bombshell. Would you believe the car had not been registered for three years and ownership was still in the name of the previous owner, a car dealership in Canberra! What were we to do for poor Bill? With no authority from Bill or POA we could not register the car, arrange transfer of ownership, new keys could not be ordered, the RACV would not move the car without authority, no car storage facility would accept the car, even if it could be transported. And there it sat outside the railway station for four months waiting to be desecrated whilst Bill remained in hospital slowly recovering but deemed to be unable to give consent. To add to these woes, Bill needed to sell his house to fund his admission to aged care and his house is full of stuff and needs to be prepared for sale.
Now this is where the Victorian Civil and Administrative Tribunal (VCAT) steps in to assist people who do not have a person appointed to be responsible under a POA for their financial affairs and medical care. On the 20th August a VCAT member convened a meeting attended by myself, also Bill, his case manager and younger brother and nephew by telephone hookup from the UK. The purpose of the meeting was to hear evidence of Bill’s situation in relation to his mental capacity to give consent. Medical evidence was provided in the form of written reports from Bill’s GP and medical specialists from the hospital where he is being treated. In his still confused state, Bill could not understand what all the fuss was about as he believed he would return to his home, drive his car and continue to live as he had prior to his misadventure. It was no surprise that VCAT ruled that Bill lacked capacity to grant consent and also ruled that an Administrator be appointed by the Public Advocate to manage Bill’s financial affairs and a Guardian appointed to take responsibility for his medical care. In spite of Bill’s brother and nephew offering to take on these responsibilities, the tribunal ruled that given they both resided in the UK it would not be practical for them to fulfill these roles, but would certainly be consulted when necessary.
In mid- September the Administrator was appointed and subsequently briefed on Bill’s past and present situation and soon commenced the mammoth task of documenting and photographing all of Bill’s possessions and getting the wheels in progress to manage the sale of his home. Early in October the Guardian was appointed and was briefed on Bill’s medical care situation. Bill’s younger brother had subsequently flown out from the UK to visit him and meet with his legal representatives to discuss his future care and sale of his possessions and home.
All the brick walls surrounding the car predicament were removed with the Administrator having the authority to arrange for new car keys, and moving the car to a VW dealership where it can be registered and prepared for sale. Bill’s licence has expired and both he and other drivers are now much safer on the roads.
The moral of this story? Do not delay in granting your financial and medical powers of attorney. The fees associated with the VCAT directed administration of your affairs by an appointed administrator can be quite significant.
Brian Spurrell FCPA, CTA Registered Tax Agent is Director of Personalised Taxation & Accounting Services Pty Ltd. PO Box 143 Warrandyte 3113.
Both Brian and his wife Jan have granted their POAs to trusted relatives.
Ph: 0412 011 946