Q: My wife and I stayed with my mother, who’s now 95, for two years after my dad passed away in the early 2000s. After that, my wife and I moved into our own house but I continued to look after my mother’s affairs, do her shopping and help her pay bills. Mum made me her power of attorney in 2006, and I am still the executor of her will. In more recent years, it became clear my mother was developing dementia (she hasn’t been formally diagnosed but has no idea what’s taking place so certainly has dementia).
In late 2017, I put Mum in hospital for a few weeks. At the time, I pointed out to my sister that she wasn’t spending enough time with Mum. The next thing I knew, my sister and her partner had removed my mother from the hospital and taken her to their home. About a year later, they put Mum’s house on the market.
They’d previously had Mum sign a document that cancelled my power of attorney and although I offered my input on the house sale, my sister and her partner refused to consider any of my opinions. They also sold what they could of Mum’s furniture and left the rest on the front verandah for me to dispose of. Mum’s will had stated that her house would be left to my sister and I “as tenants in common in equal shares”.
After the house sale, my sister had one of her children deliver to me a cheque from my mother for $100,000 (the house sold for $439,000) and Mum’s letter that came with the cheque said “I am keeping the rest for myself”, but I know Mum would never have used that terminology. Since the house was sold, my sister and her partner have built my mother a granny flat on their property and I have no idea whether funds from Mum’s house sale was put toward that.
After a confrontation on Christmas Eve, they have told me not to come onto the property again so I can’t see my mother and my sister refuses to give me any access to Mum’s bank account or other financial matters. Any advice on how to deal with this situation, including through legal avenues, would be a huge help.
A: You have painted a complicated family situation that is not, regrettably, uncommon involving as it does, a mother with doubtful capacity, sale and transfer of her assets to your sister and you, changes in her power of attorney, a granny flat arrangement, falling out with your sister and now exclusion from seeing your mother. However, it is not only your story that is complicated, so is the law.
In that context, everything in terms of what you can, or should, do turns on your mother’s capacity to make her own decisions. If she has that capacity, she can generally do what she likes in relation to her affairs. If she does not have that capacity, you are well advised to pursue your concerns promptly.
Without knowing all the necessary detail, the legal recourses you have could include reporting your concerns to the public guardian, trustee or advocate in your state or territory – anyone can report suspected cases of exploitation of an adult with impaired decision-making capacity to the public guardian for investigation. Such an investigation can involve the investigator contacting banks to get financial records, obtaining medical files and questioning friends, family members and others involved in the case.
You could apply to civil and administrative tribunal in your state or territory in relation to your mother’s power of attorney and other issues, and attempt to obtain information about the financial transactions and any issues with Centrelink. Such tribunals are independent bodies that resolve disputes and can decide who should be empowered to make decisions on behalf of an adult with impaired capacity.
The bottom line is, you need legal advice and you need it pronto!
IMPORTANT LEGAL INFO This article is of a general nature and FYI only, because it doesn’t take into account your financial or legal situation, objectives or needs. That means it’s not financial product or legal advice and shouldn’t be relied upon as if it is. Before making a financial or legal decision, you should work out if the info is appropriate for your situation and get independent, licensed financial services or legal advice.
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