Category Archives: Powers of Attorney

Guidelines for Preparing an Enduring Power of Attorney

Guidelines for Solicitors Preparing an Enduring Power of Attorney is a useful publication of the NSW Law Society containing practical information for lawyers who prepare or witness the execution of an Enduring Power of Attorney.

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Sydney, Australia

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Enduring Guardianship

Individuals in NSW may appoint an enduring guardian under the Guardianship Act 1987 (NSW) to make decisions that affect them if they lose their capacity (ie their mental ability to make decisions). More than one enduring guardian may be appointed. The enduring guardian may make personal decisions on behalf of the individual, such as where they should live and what medical services they should receive. The enduring guardian is appointed by lodging a form with the NSW Civil and Administrative Tribunal.

The NSW Civil and Administrative Tribunal may review the appointment of an enduring guardian, either on its own initiative or at the request of a person who holds a genuine concern for the welfare of the individual.

The tribunal can suspend, revoke, confirm or vary the appointment of an enduring guardian.

An enduring guardian is not the same as an enduring Power of Attorney. An attorney appointed under an enduring Power of Attorney may make decisions that affect an individual’s property or financial affairs if they lose their capacity. The enduring Power of Attorney must be validly prepared by a solicitor. It must be registered with the Land and Property Management Authority if the attorney is required to deal with the individual’s property.

For more information visit http://www.ncat.nsw.gov.au/ncat/guardianship/gt_matter_about/enduring_guardianship.html

Lawyers

Sydney, Australia

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Spina v Permanent Custodians Limited [2009] NSWCA 206

ON 22 JULY 2009, the NSW Court of Appeal delivered Spina v Permanent Custodians Limited [2009] NSWCA 206 (22 July 2009).

The late Angelina Spina and her late son Michael Spina entered into a Loan Agreement with Permanent Custodians Limited to borrow $400,000, for Michael’s benefit. The loan was secured with a mortgage over Angelina’s Cherrybrook property, her sole asset. Angelina was not given independent legal advice.

Angelina was born in Italy. At the time of the loan, she was 86 years of age and lived in a nursing home. Michael held a power of attorney with respect to Angelina’s affairs.

Angelina, through her tutor Sarina Spina (her daughter) brought proceedings in the Supreme Court of NSW against Permanent Custodians Limited seeking orders that the Loan Agreement be set aside on the grounds that it was either unconscionable or “unjust” under the Contracts Review Act 1980.

Hammerschalg J held in favour of Permanent Custodians, finding that Angelina was not at any special disadvantage or entitled to relief under the Contracts Review Act 1980.

Following Hammerschlag J’s decision, Angelina died.

The appellant, Joe Spina, was the executor of Angelina’s estate and sought an appeal of Hammerschlag J’s decision.

The Court of Appeal allowed the appeal, setting aside Hammerschlag J’s judgment and made orders that the Loan Agreement is void.

Per Young J at [119]:

“… the lender was not innocent. It was the master of the situation; it knew what to do in its operations manual and that was not complied with in a case where it was quite clear that an 86 year old lady was putting her only substantial asset on the line in a situation where she may lose the lot without herself receiving independent legal advice.”

Per Young J at [124]:

“Broadly speaking, the same sort of factors are relevant in a case based on unconscionability as those based to get relief under the statute. However, as the learned primary judge pointed out, to succeed in showing there is unconscionable conduct, a plaintiff must show that the defendant’s conduct fell short of the standards accepted by courts of equity and the focus is on the defendant. Under the Contracts Review Act, the focus is on the weaker party as to whether the contract operates unjustly towards the weaker party. Furthermore, under the Contracts Review Act relief may be given even if the relevant circumstances are not known to the other party when the contract was entered into, but this is not the case where the allegation is unconscientious conduct.”

Lawyers

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