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The Divorce you have when you didn’t realise you had a Divorce

Brian HerdBy Brian Herd, Partner at Carne Reidy Herd Lawyers, our Lead Legal Professionals at Heather Hill Pathways.

Since the 1990′s, in this country, there has been what I describe as a privatisation of incapacity – something similar to what happened to Telstra, Qantas, the Electricity industry and many other government services.

Gone are the days when, if we lost our capacity to make our own decisions, some benevolent bureaucrat would step into our shoes and make decisions for us.  Now, in an Enduring Power of Attorney, we can appoint people to make just about every decision we could make ourselves if we ever lost our capacity.  These people are usually our spouse or our children.

Added to this is the perfect demographic storm – living longer leading to a higher likelihood of losing our ability to make our own decisions.  Known as ‘frailty creep’, it is analogous to ‘bracket creep’ in the world of income tax – the longer you live, the more tax you pay as your income increases and you move up through the various tax scales.

It used to be thought that the person/s we appointed as our Enduring Power of Attorney were generally limited to making decisions about everyday things like our finances and our health care, affectionately described as ‘the affairs of our head and hip pocket’.

Now it appears they can make decisions about ‘the affairs of our heart’.

Under the law, an Enduring Power of Attorney cannot consent to the marriage of the person for whom they are the attorney.  Curiously however, as a result of recent court decisions, it appears they can now apply for and obtain a divorce on behalf of the person for whom they are the Attorney.

It all started in New South Wales a few years ago in a court case involving a man who was in his second marriage and who had lost his capacity to make his own decisions.  He had previously appointed his daughter from his first marriage as his Enduring Power of Attorney.  He had never made a Will and, in his condition, he couldn’t make one.  If he died without a Will while still married to his second wife, she would inherit a large part of his estate under what is known as the law of intestacy i.e,. dying without a Will.

Knowing this, and also that her father had previously indicated when he was capable, that he ‘just wanted to die single’, the daughter applied to the Family Court for a divorce for her father and the Court granted it.  The father died shortly after the court order, without a spouse.

In Queensland, as recently as 15 August 2013, a court was presented with a similar scenario.  The mother of a daughter who was incapable, having suffered from a hypoxic brain injury, applied to the court for a divorce on behalf of her daughter from her husband who had disappeared.  The mother had been previously appointed by the Queensland Civil and Administrative Tribunal as the Administrator for her daughter.  This meant she was able to make financial and legal decisions for her, the same as an Enduring Power of Attorney.

The court granted the divorce.

For many of us who have been in our one and only marriage for longer than we can sometimes remember, this issue may not seem top of mind.  However, for second and subsequent marriages it is, as they say, ‘an issue’.

It is not uncommon, for example, for a person in a second marriage to appoint, not their second spouse but, rather, the children from their first marriage as their Enduring Power of Attorney.  In the sometimes ‘delicate’ relationships between those children and the second spouse, this can appear to be even handed if not, logical.  However, when a parent loses their capacity and the children’s Enduring Power of Attorney is activated, the delicacy and fragility of this relationship can quickly turn poisonous.

As is so often the case, when parents have died, the ‘glue’ that parents provided to family unity can disintegrate.  The same can happen when a parent loses their capacity.  And, while death is inevitable, longevity means that incapacity is increasingly probable.

There are some important take away points from all this:

  • Don’t see the above scenarios as aversion therapy for doing an Enduring Power of Attorney – it is a vital piece of personal risk management;
  • Make sure your Enduring Power of Attorney is a good one  – for example, you can insert any special wishes or directions in the document about things you would or would not want your attorney to do if you lose capacity; and
  • Choose your Attorneys carefully and, as with your Will, review your Enduring Power of Attorney regularly to ensure it still reflects your wishes and circumstances.

As a lawyer I am not a life coach or counsellor.  However, from my experience, one thing is for sure – without proper consideration of the legal implications and good documentation, second, third, fourth … marriages or partnerships are a fertile field for family disputes and a veritable lawyer’s picnic.

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