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Monthly Archives: April 2019

No attorney but Capacity already lost?

What do you do when a family member has lost capacity but there is no power of attorney appointment in place?

Example

Dad died a while back and mum is in hospital and it looks like she has dementia and needs full time care. You, the son or daughter, need to get mum’s property sold so you can raise the funds to help cover the care needed.

You go to mum’s lawyers wanting to sell mum’s property but they point out the obvious – it is not you property to sell so you cannot enter into a contract on your mum’s behalf and you cannot sign the transfer. Is there an enduring Power of Attorney they ask? The law firm indicates they recommended one to your mother years ago (is this a breach of client confidentiality?) but she did not do one – through that firm anyway.

Later you look through all mum’s papers – there is stuff everywhere – but you cannot find any power of attorney appointments. What do you do?

The only option may be to make an application to the Guardianship Tribunal, if in NSW, to ask to be appointed as mum’s financial manager (NSW). This will take time, money and stress to do.

Something similar could happen between spouses too.

Going to the tribunal or courts to be appointed an attorney or financial guardian is best avoided if possible because

  1. Complexity
  2. Cost
  3. Time, and
  4. Multiple people could apply in opposition to each other.

Making a POA when you don’t need one will be quick, easy and cheap. This is like insurance. You don’t need it until you need it and by then it is too late to get it.!

Tip: Appoint an attorney before you need one as once you do need one it will be too late.

Discussion at:

https://www.propertychat.com.au/community/threads/legal-tip-194-no-attorney-but-capacity-already-lost.38738/

Declarations of Trust and CGT

I have outlined what a declaration of trust is here http://www.structuring.com.au/terry/trusts/declaration-of-trust/ .

What are the CGT consequences of a person declaring that they now hold an asset as trustee? There is no change in title, so most people probably think there are no tax consequences, but there are.

CGT Event E1 (section 104-55(1) ITAA97) happens when someone declares a trust over existing property they own. This is because there is a change of beneficial ownership, even though the legal ownership remains the same.

Example

Homer holds 100 shares in CBA. He makes a declaration of trust that he now holds these shares on trust under the terms of the Simpson Family Trust deed. No change of ownership has happened, but this has triggered CGT just as if there was a sale of those shares to a 3rd party. If the cost base of the shares was $100,000 and the market value is now $200,000 that would mean a $100,000 capital gain is made (which may then get the 50% CGT discount etc).

(Homer should have sought legal advice as there are ‘better’ ways of doing this)

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