Sale of property gifted under a will by an attorney acting under an enduring power of attorney : does the gift adeem and what is the attorney's duty?

The authors examine Moylan v Rickard and how the case illustrates the effectiveness of the Powers of Attorney Act 1998 (Qld) to provide remedies and other possible avenues of redress

Assessing capacity in the context of testamentary, enduring power of attorney, and advance care directive documents in Australia

Balancing the competing interests of autonomy and protection of individuals is an escalating challenge confronting an ageing Australian population. Legal and medical professionals are increasingly being asked to determine whether individuals are legally capable to make their own testamentary, financial and/or personal/health care decisions. Diseases such as dementia impact upon cognition which necessitates collaboration between the legal and medical professions to satisfactorily assess the effect of such mentally disabling conditions upon legal competency. Terminological and methodological differences exist between the two professions when assessing capacity in this context which subsequently create miscommunication and misunderstanding. Consequently, it is not necessarily a simple solution for a legal professional to seek the opinion of a medical practitioner. Exacerbating the situation is the fact that no consistent and transparent capacity assessment paradigm currently exists in Australia. Assessments are instead being undertaken on an ad hoc basis dependent upon the skill set of the legal and/or medical professionals involved. A qualitative study seeking the views of legal and medical professionals who practise in this area has been conducted. This incorporated a review of the relevant literature and surveys which informed the semi-structured interviews conducted with 10 legal and 20 medical practitioners. Practitioners were asked whether there is a standard approach to assessment and whether national guidelines would assist. The general consensus was that uniform guidelines would be advantageous. The research also canvassed practitioner views as to the state of the relationship between the professions when assessing capacity. Three promising practices have emerged from this research: first, is the need for the development of national guidelines and supporting principles to satisfactorily assess capacity; second, is the possibility of strengthening the relationship between legal and medical professionals to assist in the satisfactory assessment of legal capacity; and third, the need for increased community education.

Enduring powers of attorney : promoting attorneys' accountability as substitute decision makers

Aim The misuse and abuse of Enduring Powers of Attorney (EPAs) by attorneys, particularly in relation to financial decision-making, is a growing concern. This paper explores the opportunities to enhance accountability of attorneys at the time of the execution of the document in Queensland. Method A four stage multi-method design comprised a critical reference group; semi-structured interviews with 32 principals or potential principals, attorneys and witnesses; two focus groups with service providers and a state wide survey of 76 principals, attorneys and witnesses. Results Across all methods and user groups, understanding the role and obligations of the attorney in an EPA was consistently identified as problematic. Conclusions Promoting accountability and understanding can be addressed by greater attention to the role of the attorney in the forms/ guidelines and in the structure and witnessing of the forms, increased direction about record keeping and access to appropriate advice and support.

Assisted suicide where the "assistor" is a beneficiary under the deceased's will and/or attorney under a power of attorney granted by the deceased : what are the potential consequences?

The recent criminal conviction 1 of Queensland teacher, Merin Nielsen, for aiding the suicide of an elderly acquaintance, Frank Ward, raises some timely issues, particularly for succession lawyers. This is the second time in recent years that there has been a conviction of a person who participated in a scheme

Power of Attorney of Colonel John Butler for Robert Hamilton and Robert Addison, January 4,1797

John Butler (1728-1796) was originally from Connecticut but settled with his family in the Mohawk valley of New York around 1742. His father was a Captain in the British army and well acquainted with William Johnson (superintendent of Northern Indians). Butler impressed Johnson with his aptitude for Indian languages and diplomacy. He began to work with Johnson in 1755, and received several promotions in the department, until his apparent retirement in the early 1770s. At the onset of the Revolutionary War in 1775, Butler relocated to Canada to join the British forces, settling in Niagara. During the War, Butler was instrumental in maintaining the alliance with the Indians. After the War, Butler became prominent in local affairs in Niagara, but failed to secure any important offices when the province of Upper Canada was formed in 1792. In an effort to recoup some of the financial losses his family suffered during the War, Butler illegally attempted to supply trade goods to the Indian department with his son Andrew, his nephew Walter Butler Sheehan, and Samuel Street, a Niagara merchant.

Power of Attorney granted to Joseph Augustus Woodruff by Thomas Sheppard Smyth

Power of Attorney granted to Joseph Augustus Woodruff by Thomas Sheppard Smyth of the Township of Stamford, Sept. 2, 1851.

Power of attorney for Joseph Chip, 1804 December 21

Handwritten draft of a power of attorney, in Croswell's hand, authorizing John Jones to act for mariner Joseph Chip.

Power of Attorney, [?] Wellington for Thomas Durant, Sept. 22, 1787

Signed by Thomas Durant and witnessed by Ebenezer Bradish. It is possible that Shapleigh used this document as a guide when drafting his own power of attorney documents.

Power of Attorney, Samuel Shapleigh for Thomas Adams, Jan. 12, 1791

Signed by Thomas Adams and witnessed by Abraham Biglow and Daniel Clarke Sanders.

Power of Attorney, Samuel Shapleigh for James Otis Prentiss, Aug. 18, 1791

Document also contains what appears to be a bill for medical services rendered by Prentiss, a doctor, to William Boman.

[Power of attorney between Stephen Sewall and Thomas Wigglesworth], 1794 August 21

This one-page printed form appoints Thomas Wigglesworth as the "true and lawful Attorney" for Stephen Sewall. The form is notarized by Samuel Barrett and witnessed by Barrett and his daughter Peggy Barrett.

Power of Attorney, Samuel Shapleigh for Thomas Thompson, May 18, 1791

Signed by Thomas Thompson and witnessed by Thaddeus Mason Harris and Otis(?) Clarke.