Rob and Jill had been together for 10 years.
They each had adult children from previous marriages and also had assets from those relationships which they had agreed would be their own separate property.
They had seen their own lawyers and signed a relationship property agreement (or pre-nuptial agreement) agreeing on that. They lived in a house which Rob owned 40% of and Jill owned 60% of and they both owned shares in a business that they had started together five years ago.
Rob and Jill were looking forward to the next few years when they would sell their business and enjoy their well-earned retirement. They each had grandchildren living overseas and they were keen to spend as much time with them as they could. In fact, they also had their house on the market, intending to downsize and buy a 'lock and leave'.
However, one morning after walking their dog along the beach, Jill complained to Rob that she had a terrible headache. The next thing, Jill had collapsed on the floor and Rob rang for an ambulance. It transpired that Jill had had a cerebral stroke.
Rob was at a loss. The first thing the doctors asked was, who has power of attorney. Rob and Jill hadn’t got around to completing powers of attorney – they had done them for Rob’s mum who was in a rest home, but hadn’t thought that they would need them as they were only in their 50s.
It wasn’t just Jill’s healthcare that Rob was unable to make decisions about. He soon found out that as Jill hadn’t appointed an attorney in relation to property, he couldn’t access her bank accounts to help with household expenses. There were also transactions with the company that he couldn’t deal with as Jill was a 50% shareholder.
But what was also concerning at this stage was that he couldn’t negotiate on the sale of their property as Jill owned her share of the property in her own name.
The only option was for Rob to hire a barrister to make an application to the Court to appoint him as Jill’s attorney. This was a very costly and frustrating experience as the consent of Jill’s adult children had to be obtained before Rob could be appointed as attorney. The time delays only added to Rob’s stress.
If only Rob and Jill had instructed their lawyer to prepare enduring powers of attorney for them. An enduring power of attorney is a legal document that everyone should set up to give peace of mind for the future.
DAVENPORTS LAW, 331 Rosedale Road, Level 1, Building 2, Albany, T: 09 883 3284, www.davenportslaw.co.nz
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Published: August 2023