When families can’t agree and Tribunals have to decide

When families can’t agree and Tribunals have to decide

I have recently been approached by a family member for advice in relation to their father’s situation and since it is a variation of a story I hear quite often, think it’s a good topic for my article this month.

The scenario is that Dad is getting older and a bit more forgetful as time passes but up until now has been able to manage himself. That is, until a decline in his health suddenly changes his ability to live on his own. To make matters worse, this family member now believes after looking into Dad’s affairs, that a sibling may have been taking advantage of Dad’s situation to benefit themselves for the last few months. This family member and their other sibling search for any legal documents that Dad may have prepared but unfortunately are only to locate a will which will only apply if he passes away.

They then approach me for some advice in relation to whether I could prepare legal documents to appoint them as Dad’s financial attorney and medical guardian, so that they can attend his medical appointments and discuss his treatment options, they need to start looking into assisted living arrangements for him, and deal with his reporting requirements with Centrelink so his bills can continue to be paid. They also wish to avoid any potential further issues with the sibling who they suspect has been using Dad’s funds for their own benefit.

Unfortunately, after enquiries are made with Dad’s treating doctor, we find out that Dad no longer has the capacity to make decisions on his own, which includes being able to provide me with relevant instructions to prepare these documents for him. I advise the family member and their sibling that they will need to apply for guardianship and financial management orders by lodging an application in the NSW Civil & Administrative Tribunal. There will need to be medical evidence filed regarding Dad’s capacity and the matter will be determined by the Tribunal following a hearing. The sibling who has been “assisting” Dad informally to date will also be able to apply to be appointed or could oppose the application. If the conflict between the siblings cannot be resolved, the NSW Trustee & Guardian may need to be appointed to manage Dad’s ongoing affairs.

This is the sort of situation that can tear a family apart and it could have been avoided if Dad had seen a solicitor regarding his estate planning needs and had the correct documents in place. Dad obviously thought having a will was enough, but in this case, it wasn’t. Consider whether you have a plan in place for the future if this sort of scenario occurred and if you don’t, it might be time to make an appointment to discuss. KC Hilton, WNB Legal