If you haven’t yet watched Kitty Flanagan’s new comedy Fisk (you should!). The series has certainly kept us entertained! See our earlier blogs here and here!
In episode 3 we meet Eileen Popovitch who wanted to prepare an Enduring Power of Attorney for her mother – because according to Eileen, her mother was losing capacity. When asked if she wanted to do that so that she could look after her mother’s health and wellbeing, the daughter’s response made it clear that her main game was not care for he mother, but rather her wish to “make decisions about the money”!
In case you are wondering – no, you can’t make a power of attorney for someone else!
In fact once someone has lost capacity to understand the legal effect of a power of attorney they can’t give that power to another person either.
So Fisk, who had legitimate suspicions about the daughter’s motives, quite rightly insisted that she meet with Eileen’s mother before preparing any documents. Phew!
When both mother and daughter returned it was quite apparent that they shared some “eccentricities”! Both of them impulsive kleptomaniacs, brazenly taking anything and everything that wasn’t bolted down! Even poor Fisk lost her glasses to the Mrs. Popovitch while her hands were full recovering other contraband office items.
To some Mrs. Popovitch probably seemed quite crazy as she chanted “finders keepers” over and over, and professed to speaking to Pope Francis while bagging the telephone conferencing equipment from the boardroom! But it was quite clear that she did NOT want to hand over power over her money to her daughter because she feared she would spend it all on eBay (“the devil’s department store”)!
While legal capacity is not always easy to prove – particularly when eccentricities and the “creep” of diseases like dementia or Alzheimer’s have to be taken into account – one thing is clear – the “my mother ate the medical certificate” excuse (proffered by Eileen to explain why there was no medical evidence available) will not cut it when a court is asked to scrutinise the behaviour of an attorney after someone dies. And for the record – being able to identify the day of the week – is also NOT enough to prove someone’s capacity to understand making a legal document that has nothing to do with weekdays!
We can only hope Helen Tudor-Fisk did not prepare any documents for Mrs. Popovitch giving power of attorney to her daughter during that episode! Maybe that’s why she suddenly became reticent to take the invoice – despite grabbing at pamphlets, pot plants and artwork on the way out of the office!
As funny as the episode was – the care with which powers of attorney should be considered is no laughing matter. These are documents that will set out your wishes for your care and the management of your finances when you lose capacity to make those decisions for yourselves. They will be your voice when you no longer have one. So please do them properly (we can refer you to specialist lawyers who can help you).
Sadly, with the rise of elder financial abuse, post-death actions requiring attorneys to provide an accounting and to pay compensation to the estate are also increasing. It is important to remember that orders can be made against attorneys personally if it is discovered that they have had their hand in the “cookie jar” (or if they have made purchases on eBay) for their own benefit (or for the benefit of their family or business associates) – instead of managing the money and assets for the benefit of their legal owner.
At Resolve Estate Law, we are here to help you navigate the legal fallout that follows after the loss of a loved one. If you need help requesting (or providing) an attorney accounting in an estate matter, please contact us by phone or email, or click here to arrange your complimentary 15 minute call.