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Speaker 1: Now when experience matters. Trust Johnston Withers Lawyers with over

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Speaker 1: seventy five years legal experience Johnston Withers dot com dot

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Speaker 1: au and from Johnston with us in the studio with

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Speaker 1: me today Caitlin Walkington, who is team leader Litigation. Caitlyn,

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Speaker 1: good morning, Welcome morning, Matthew.

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Speaker 2: How are you all right?

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Speaker 1: Thank you now also too, before we get into your

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Speaker 1: topics today, if anybody has any legal questions, I'm sure

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Speaker 1: you'll be able to provide a general legal advice on

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Speaker 1: on air for them. So the number of the board

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Speaker 1: is open eight double two to three double.

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Speaker 3: Oh.

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Speaker 1: But today you want to talk about people who may

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Speaker 1: have lost mental capacity or people aren't able to make

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Speaker 1: decisions for themselves. What's involved there and how important is

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Speaker 1: it to maybe pride or anything happening you have paperwork

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Speaker 1: in place.

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Speaker 4: Yeah, it's a really big topic at my mat and

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Speaker 4: we're seeing a lot of these issues coming in at

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Speaker 4: Johnston where there's both people who are getting prepared but

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Speaker 4: also at the tail end of that people who weren't

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Speaker 4: prepared and now family have been stuck without being able

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Speaker 4: to manage their circumstances. So I think with the aging population,

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Speaker 4: these days, it's going to be a really big issue.

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Speaker 4: So when you lose capacity, that does get determined by

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Speaker 4: a doctor, and you know that might be determined because

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Speaker 4: of someone's illness or their age, or an injury that

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Speaker 4: they've suffered, And losing capacity doesn't always need to be

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Speaker 4: full loss of capacity. It might be a partial loss

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Speaker 4: of capacity, and it doesn't need to be permanent. Sometimes

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Speaker 4: people lose capacity temporarily and all of these things affect

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Speaker 4: how they go about their day to day lives, Who's

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Speaker 4: making decisions for them, and you know, their circumstances and

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Speaker 4: affairs can't just stand still. So it is a big topic,

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Speaker 4: and it kind of is where we see a overlap

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Speaker 4: between the legal sphere and the medical sphere because to

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Speaker 4: determine if someone has lost capacity, that is a medical question.

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Speaker 4: Their ability to be able to understand facts being involved,

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Speaker 4: understand their choices, weigh up the consequences between those choices,

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Speaker 4: and understand how the consequences will affect them, and be

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Speaker 4: able to communicate their reasons. That decision making process is

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Speaker 4: decided by doctor as to whether or not they're able

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Speaker 4: to do that. There's been a really interesting study that's

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Speaker 4: come out from the European Journal of Neurology really recently,

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Speaker 4: where they're talking about the challenges that doctors have to decide,

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Speaker 4: particularly in with dementia, whether or not someone has capacity

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Speaker 4: or not, and the requirements that they have to go

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Speaker 4: to where they're looking particularly at impulsivity and memory impairment

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Speaker 4: in deciding whether or not someone's capable of being able

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Speaker 4: to manage their own affairs. So it is a topic

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Speaker 4: that we're going to see a lot more discussions come out,

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Speaker 4: especially in the medical area, where they're going to I think,

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Speaker 4: have a lot more standardization in terms of how those

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Speaker 4: tests are conducted and what the standard is, because it's

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Speaker 4: going to be an issue that affects more and more people.

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Speaker 2: If you lose capacity.

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Speaker 4: And you don't have these documents, and there can be

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Speaker 4: quite a number of steps of your family and friends

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Speaker 4: need to take to be able to let your affairs

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Speaker 4: and let your life continue.

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Speaker 2: So I guess.

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Speaker 4: If you lose capacity, what happens will really depend on

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Speaker 4: do you have documents in place to protect you.

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Speaker 2: Or do you not.

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Speaker 4: So if we talk about that today, then hopefully that

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Speaker 4: will give the listeners a little bit of idea with

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Speaker 4: what they need to do.

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Speaker 1: If you lose capacity, what decisions can't you make or

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Speaker 1: who'll be making them? Is it your family if your

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Speaker 1: parents are gone? Is it your children? Is it your

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Speaker 1: siblings if you don't have children, or what if you

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Speaker 1: were an only child and everyone's gone, what happens?

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Speaker 4: Yes, So I guess the first question is have you

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Speaker 4: been prepared and do you have your documents in place?

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Speaker 4: Because the documents that we're talking about are very separate.

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Speaker 2: To a will.

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Speaker 4: A will is only going to come into effect when

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Speaker 4: you die. In the meantime, if you're still alive and

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Speaker 4: you lose capacity, you need what's called a power of

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Speaker 4: attorney an advanced care directive. So those two documents are

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Speaker 4: separate but support and compliment each other.

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Speaker 2: So a power of.

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Speaker 4: Attorney allows you to point a personal people to make

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Speaker 4: legal and financial decisions on your behalf, and you can,

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Speaker 4: depending on how you want that drafted, that could be

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Speaker 4: effective immediately or quite commonly, it's only effective if you

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Speaker 4: lose capacity to be able to make decisions for yourself.

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Speaker 4: And then equally, we've got an advanced care directive which

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Speaker 4: allows you to appoint a personal people to make medical

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Speaker 4: and lifestyle decisions on your behalf.

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Speaker 2: If you can't.

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Speaker 1: So once determined to not being able to make a decision. Firstly,

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Speaker 1: is it a stroke? Is it a health emergency? Essentially?

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Speaker 4: Yeah, So that comes back to the test that the

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Speaker 4: doctors need to complete. And so there's a range of

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Speaker 4: things that will determine if someone has lost capacity. I mean, obviously,

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Speaker 4: if someone's in a coma, that's a pretty clear example

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Speaker 4: of where they're not going to be able to make capacity.

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Speaker 4: Matters like dementia and conditions such as that are more

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Speaker 4: difficult to determine if you need, if you have a

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Speaker 4: power of attorney that's only effective upon you losing capacity.

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Speaker 4: Your attorneys can't go off and use that document without

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Speaker 4: a statement from a medical doctor or a medical professional

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Speaker 4: which says that you have lost capacity. So there needs

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Speaker 4: to be some evidence to support that as well. Equally,

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Speaker 4: under an advanced care directive, you've always and I think

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Speaker 4: this is going to put everyone's mind to ease, is

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Speaker 4: that you've always got to make your own medical and

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Speaker 4: lifestyle decisions and that document will only come into effect

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Speaker 4: if you've lost capacity to be able to make those

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Speaker 4: decisions for yourself.

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Speaker 1: Okay, So then coming back to who makes those it

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Speaker 1: is you know I suppose whoever your point doesn't have

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Speaker 1: to be relatives necessarily.

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Speaker 2: No, it doesn't have to be.

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Speaker 4: So a lot of the time people might pick you know,

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Speaker 4: friends or it could be family, and I guess when

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Speaker 4: you you know. It is a big topic that we

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Speaker 4: discuss with people when we're drafting these documents, is who

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Speaker 4: should I appoint? And the thing is that I say

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Speaker 4: it should be someone who you know, you have a

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Speaker 4: good relationship with, you trust, someone who has a reasonable

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Speaker 4: understanding of your affairs. They're the type of things that

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Speaker 4: you need to think about, but also always encourage my

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Speaker 4: clients to have a conversations with these people as well

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Speaker 4: to make sure that they're willing to do the role.

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Speaker 4: You're under no obligation to accept a position to be

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Speaker 4: someone's attorney or substitute decision maker, and when you're appointing them,

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Speaker 4: they've actually got assigned documents to say yes, I agree

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Speaker 4: to do those roles. So having a think about these

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Speaker 4: issues about who would be the best person to a

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Speaker 4: point and then having a conversation with them is also important.

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Speaker 4: The other thing that I tell my clients because can

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Speaker 4: seem like an overwhelming decision to make, and it does

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Speaker 4: deter people. A lot of the time from going and

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Speaker 4: getting these documents done is that we don't it's not

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Speaker 4: set in stone, we don't carve it into stone, and

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Speaker 4: it's not a permanent document. You've got to think that

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Speaker 4: the consequence of not having one, which we'll talk about

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Speaker 4: in a minute, is more significant than appointing someone where

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Speaker 4: you might change your mind later. So you need to decide,

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Speaker 4: based on the facts and the information available to you now,

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Speaker 4: who's the best person to appoint the document, and then

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Speaker 4: if you need to change it later whilst you still

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Speaker 4: have capacity, then that can be.

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Speaker 1: Changed financial decisions which are perhaps just as risky as

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Speaker 1: any other decision that you might make. Is it best

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Speaker 1: to appoint a lawyer or a banker to do that?

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Speaker 4: No, I would definitely recommend that your point, someone who

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Speaker 4: knows you and your personal circumstances. A lot of lawyers

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Speaker 4: banker's accountants, unless they have a good, close personal relationship

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Speaker 4: with you, wouldn't take on the role.

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Speaker 2: For me.

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Speaker 4: It's not something that I would do for an ordinary

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Speaker 4: client that I don't otherwise know outside of work. And

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Speaker 4: the reason why is that we have to make so

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Speaker 4: many intricate personal decisions about your every day to day life,

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Speaker 4: how to pay your bills, you know, whether we need

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Speaker 4: to sell your house to be able to get you

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Speaker 4: into a nursing home. All of those decisions are very

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Speaker 4: very significant things to make for someone and very personal.

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Speaker 4: So if you don't understand a person and their personal circumstances,

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Speaker 4: you're not the right person to be appointed.

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Speaker 1: Okay, there we go. What about medical and lifestyle decisions?

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Speaker 1: How do you appoint somebody there? Again? Is it you know?

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Speaker 1: To somebody you know? I suppose it's the best way

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Speaker 1: of doing it.

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Speaker 2: Yeah.

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Speaker 4: See, that's under the Advanced Care Directive. They can make

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Speaker 4: all medical lifestyle decisions, and that will only come into

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Speaker 4: effect if you lose capacity to be able to make

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Speaker 4: decisions for yourself. So should be someone that you trust

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Speaker 4: and someone you know who has, you know, similar values

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Speaker 4: to you as well. I think the other thing to

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Speaker 4: tell you about that document is that there is three

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Speaker 4: or four pages in that document where you can express

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Speaker 4: wishes about where you live, what doctor you like to see,

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Speaker 4: what things are important to you. Now, there are only

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Speaker 4: expressions of wishes, so they're not legally binding on your

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Speaker 4: decision makers or your doctors to follow. But some people

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Speaker 4: choose to put information in there to assist their family

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Speaker 4: and their friends. But at the end of the document,

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Speaker 4: we can record what's called binding refusals of healthcare. So

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Speaker 4: these are things that are binding on a doctor or

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Speaker 4: your family and friends, the people you've appointed to follow,

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Speaker 4: which relate to decisions if you're at the end of

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Speaker 4: your life and can't make them for yourself anymore. So

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Speaker 4: you know common ones about turning off life support or

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Speaker 4: giving pain relief, or whether or not you want you know,

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Speaker 4: special measures taken at the end of your life. So

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Speaker 4: there some of the things in that document that you

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Speaker 4: can pre set so that you know that your decisions

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Speaker 4: are going to be followed.

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Speaker 1: All right. Caitlin Walkington is my guest from Johnston Withers Lawyers.

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Speaker 1: We've got Damien on the phone, Caitlin with a question

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Speaker 1: about enduring power of attorney. Hi, Damien, Hello there.

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Speaker 3: Look, I just want to ask in your explanation around

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Speaker 3: power of attorney, you haven't drawn that distinction around enduring

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Speaker 3: power of attorney generally speaking. I just thought that it's

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Speaker 3: sort of superseded a general power of attorney and probably

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Speaker 3: is an instrumental instrument to provide a protection for people

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Speaker 3: that can be enacted before they lose capacity, but also

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Speaker 3: come into play at the time that they lose capacity.

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Speaker 3: That's correct.

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Speaker 4: Yeah, So there's two documents when we're talking about powers

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Speaker 4: of attorney. Ones like you've picked up and enduring power

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Speaker 4: of attorney, and there's also a general power of attorney.

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Speaker 4: So general power of attorney will depend you draft it

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Speaker 4: and you set out the terms as to when it

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Speaker 4: comes into effect and how long it comes into effect.

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Speaker 4: So sometimes people might say, well, I'm going on a

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Speaker 4: holiday for the next few months, so this document can

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Speaker 4: you know, come into effect whilst I'm away, and then

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Speaker 4: it ends once I get back. Usually unless it says

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Speaker 4: otherwise that general power of attorney will end if you

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Speaker 4: lose capacity as well during that period. Then equally you've

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Speaker 4: got an enduring power of attorney which will only come

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Speaker 4: into effect if you lose capacity. There is a way

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Speaker 4: that you can draft the document, and this is dependent

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Speaker 4: on what someone wants to achieve and their personal circumstances,

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Speaker 4: so that it can be what we call a general

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Speaker 4: and enduring power of attorney so that it comes into

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Speaker 4: effect immediately and it continues if you lose capacity. So

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Speaker 4: it's one of those things. That's really important to get

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Speaker 4: advice from a specialist so you can work out what

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Speaker 4: you need and what's best going to suit you as

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Speaker 4: to whether or not you need people to be able

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Speaker 4: to assist you with making legal and financial decisions now

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Speaker 4: for whatever reason, or whether or not you only want

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Speaker 4: that to come into effect if something unfortunate happens and

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Speaker 4: you can't make decisions for yourself anymore.

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Speaker 3: Right, So that latter one really is the more comprehensive

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Speaker 3: if I could suggest, is that right?

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Speaker 4: Yeah, it depends on circumstances. But I quite commonly recommend

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Speaker 4: to clients a general and enduring power of attorneys, so

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Speaker 4: a combination of the two, where it will only come

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Speaker 4: into effect if you lose capacity to be able to

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Speaker 4: make decisions for yourself, or if you give your attorneys

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Speaker 4: a ridden request to do a specific act, so that

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Speaker 4: gives you the flexibility I guess in both scenarios, but

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Speaker 4: it really does depend on what circumstances are for.

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Speaker 2: You at the time.

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Speaker 3: Sure, sure, look, thank you very much for that, Thanks Damian.

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Speaker 1: Good question, Damien, Thank you, Caitlin. How can a person

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Speaker 1: be sure the decision makers are doing the right thing

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Speaker 1: if they're not across the detail. If they're obviously, as

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Speaker 1: you're say, in a coma or whatever, how do they

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Speaker 1: know that they're being looked after properly.

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Speaker 4: Yeah, so obviously if they've still got capacity, they can

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Speaker 4: and someone's not doing the right thing, they can change

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Speaker 4: at any point. It does become a little bit more

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Speaker 4: different if someone's lost capacity, because then they can't update

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Speaker 4: the documents, but they've got If their family or friends

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Speaker 4: have suspicion that someone's not doing the right thing or

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Speaker 4: acting in that person's best interest, then they can bring

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Speaker 4: an application to SAYKAP And we've involved in a lot

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Speaker 4: of these matters unfortunately where they've said there's concerns that

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Speaker 4: the decision maker under the power of attorney or advanced

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Speaker 4: CA diirective is doing this and we don't think that

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Speaker 4: that's the right decision, And then sayat tribunal can have

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Speaker 4: a look to make sure that the attorney or the

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Speaker 4: substitute decision maker is making the right decisions. If they're not,

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Speaker 4: then they can actually have that document and that position removed,

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Speaker 4: then removed and someone subsequently appointed to note and to

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Speaker 4: ease some people's concern about a power of attorney if

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Speaker 4: someone is doing the wrong thing. It is both a

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Speaker 4: civil and a criminal offense, so that they can be

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Speaker 4: personally held liable if they were to take money out

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Speaker 4: of your account which is not in your best interest

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Speaker 4: or unauthorized, they can be liable for that amount.

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Speaker 2: And then equally it is.

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Speaker 4: Also a criminal offense because if you've fraudulently dealt with

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Speaker 4: someone's fund. So it isn't a nice situation to be

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Speaker 4: involved in, but you also know that there's those protections

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Speaker 4: in place from the tribunal who will be able to

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Speaker 4: investigate and get involved and all to that document in

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Speaker 4: your best interests.

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Speaker 1: Okay, what happens if somebody hasn't prepared a power of

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Speaker 1: attorney or advanced care directive and loses capacity.

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Speaker 2: It's once again an application to SAYCAP.

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Speaker 4: So that's where you approach, SAYKAP and this could be

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Speaker 4: done by a fanamily, a friend, but equally it could

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Speaker 4: be done by a service provider or a doctor, a

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Speaker 4: social worker, someone at a nursing home. They bring an

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Speaker 4: application to say this person can't make their own decisions,

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Speaker 4: there's no one else here to do it for them,

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Speaker 4: so we need someone appointed. Seika in those circumstances will

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Speaker 4: first of all need a report to be satisfied that

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Speaker 4: that person has lost capacity. And then after that they

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Speaker 4: will get all of this information from the applicant and

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Speaker 4: invite family members to put on information before them as

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Speaker 4: to the personal circumstances and who would be the right person.

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Speaker 1: Okay, all right. Can an attorney act on your behalf?

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Speaker 1: If I suppose that's what you're entitling them to do,

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Speaker 1: isn't it? Yes, so they speak for you.

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Speaker 4: Yeah, an attorney can, when your document does come into effect,

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Speaker 4: do anything legally or financially that you can do on

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Speaker 4: your behalf. There's a few exceptions to that, you know.

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Speaker 4: The clearest one is that they always have to be

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Speaker 4: acting in your best interests, so they're wearing two hats.

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Speaker 4: They can't put their interests and priorities above yours. They

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Speaker 4: have to always do something that's in your best interest.

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Speaker 4: They can't make a new will for you, which you

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Speaker 4: know might sound obvious but does get risen.

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Speaker 1: So there are because the risk would be they might

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Speaker 1: then try and the fraud the original will would. Yes,

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Speaker 1: that's the key consideration.

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Speaker 2: So they can't do that.

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Speaker 4: If we in this situation where someone didn't have a

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Speaker 4: power of attorney and say Khat has appointed what they

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Speaker 4: call an administrator, which is someone to make legal and

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Speaker 4: financial decisions on your behalf. There are actually further safeguards

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Speaker 4: in place in those circumstances and further restrictions on how

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Speaker 4: that person can.

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Speaker 2: Do their job.

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Speaker 4: That's obviously because se Kat has you know, with the

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Speaker 4: best information available to them, appointed the right person. But

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Speaker 4: they want to make sure that person long term is

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Speaker 4: still the correct person. So they will actually review any

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Speaker 4: orders that they make at least every twelve months, but

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Speaker 4: they can review it more frequently if they need to.

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Speaker 4: They will also require the administrator to report to public

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Speaker 4: Trustee and give details of all of their financial reporting.

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Speaker 4: It's usually every six every twelve months, but they can

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Speaker 4: make it more regularly if they think appropriate. If Public

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Speaker 4: Trustee doesn't get the report or isn't satisfied with what

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Speaker 4: the report says, then they refer the matter back to

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Speaker 4: Sakad and that's where you know that Seykat will then review, okay,

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Speaker 4: well is this person still the correct person to be

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Speaker 4: making legal and financial decisions. But also Saykap put restrictions

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Speaker 4: on and say, well, if you're making big decisions such

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Speaker 4: as buying a house, selling a house paying in a

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Speaker 4: refundable accommodation deposit to a nursing home. You can't do

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Speaker 4: so without applying to us first setting out the reason

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Speaker 4: for that, and us getting an order. So, you know,

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Speaker 4: I think that that's probably a pretty clear distinction that

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Speaker 4: you know, on a stress to people, you have a

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Speaker 4: power of attorney, You get to a point who you

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Speaker 4: think the right person is, and then they go about

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Speaker 4: doing the right decisions for you, and they don't need

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Speaker 4: that level of supervision and that application and you know

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Speaker 4: the oversight. You don't have a document prepared and an

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Speaker 4: administrator gets appointed, you don't have a say on who

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Speaker 4: that person is, and then there are extra hoops that

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Speaker 4: that needs to jump through. Now, if SEKAT doesn't think

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Speaker 4: that you're they don't know who to appoint, they can't

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Speaker 4: decide who would be the right person, or perhaps family

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Speaker 4: members or friends aren't willing to do that role. Then

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Speaker 4: they will appoint public trustee to do.

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Speaker 2: That for you.

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Speaker 4: Public trustee would manage your affairs and of course there's

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Speaker 4: you know, commissions and fees that would be charged to

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Speaker 4: your account for them doing that role. And equally, if

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Speaker 4: there's no one to make medical and lifestyle decisions for you.

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Speaker 4: They will appoint the Office of the Public Advocate.

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Speaker 2: To do that for you.

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Speaker 1: Right, so I getting feeds in charges probably know no fees.

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Speaker 2: And charges associated with that.

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Speaker 4: But once again, you're not going to have that personal

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Speaker 4: relationship where someone understands what your wishes are and you

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Speaker 4: know try Yes, absolutely, you know they're going to try

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Speaker 4: to get to know you as well as possible. But

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Speaker 4: they've also got another you know a number of people

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Speaker 4: that they're managing in a case load. Yeah, I'm sure

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Speaker 4: that they're under pressure there as well. So obviously having

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Speaker 4: the preference to have a family or friend someone you

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Speaker 4: trust and that you get to pre decide is the

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Speaker 4: preference for doing that opposed to having the tribune or

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Speaker 4: decide that for you.

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Speaker 1: Caitlyn, you'd have to be eighteen I suppose minimum to

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Speaker 1: have an advanced care directive and a power of attorney

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Speaker 1: for someone else.

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Speaker 4: Yes, But equally you also have to be eighteen to

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Speaker 4: be appointed under your advanced care directive. So you might

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Speaker 4: have a very sensible seventeen year old that you think, no,

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Speaker 4: I just want it to be them, or you do

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Speaker 4: have to wait for them to turn eighteen before that

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Speaker 4: they can get appointed.

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Speaker 1: Can you make it so when of age so you

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Speaker 1: can appoint them younger you.

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Speaker 2: Can under a power of attorney.

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Speaker 4: They can't sign acceptance for that until they turn eighteen,

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Speaker 4: and they don't have any powers till they're eighteen. Under

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Speaker 4: the Advanced Care Directive you can't, however, because that documents

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Speaker 4: a little bit interesting in the sense that when you

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Speaker 4: do prepare it, you know, you go to a solicitor,

387
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Speaker 4: they get all your details, draft the document. You actually

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Speaker 4: have to go and get your substitute decision makers, so

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Speaker 4: the people you want to appoint to sign it before

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Speaker 4: you do. And so there's been a whole heap of

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Speaker 4: conversations that the Law Society's had with Parliament about changing

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Speaker 4: that reverse order so that it's consistent with other documents.

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Speaker 4: But in that case, you actually have to have your

394
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Speaker 4: Advanced Care Directive signed by your family, friends.

395
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Speaker 2: People you want to appoint before you can sign it.

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Speaker 4: And so obviously someone under eighteen doesn't have legal authority

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Speaker 4: to sign and have a binding agreement, so you can't

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Speaker 4: appoint someone in in a power of it sorry Advanced

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Speaker 4: Care Directory until such time as they're eighteen.

400
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Speaker 1: Yeah, it sounds really important to have and you know

401
00:19:43,680 --> 00:19:46,840
Speaker 1: we might be in the rudest of health and think

402
00:19:46,920 --> 00:19:49,040
Speaker 1: I don't need this. This is you know, I'll worry

403
00:19:49,040 --> 00:19:52,199
Speaker 1: about it when I'm retired, for instance. But you never know,

404
00:19:52,320 --> 00:19:53,479
Speaker 1: do you. That's the thing with it.

405
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Speaker 4: And I say this to my clients, and I stress

406
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Speaker 4: that it's not a marketing tactic, it's not an upsale,

407
00:19:59,080 --> 00:20:01,760
Speaker 4: it's none of that. I actually care more about my

408
00:20:01,920 --> 00:20:04,600
Speaker 4: power of attorney an Advanced Care Directive then I do

409
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Speaker 4: my will. Really me personally, I think I'm going to

410
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Speaker 4: be dead with my will, so I'm not going to

411
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Speaker 4: know any better about my assets. But if something happens

412
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Speaker 4: to me, I lose capacity, whether that be.

413
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Speaker 2: Temporarily or permanent.

414
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Speaker 4: I want to make sure that the people that I

415
00:20:19,119 --> 00:20:21,840
Speaker 4: trust and that I love are making the right decisions

416
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Speaker 4: for me. So for me personally, I care more about

417
00:20:24,440 --> 00:20:29,840
Speaker 4: those two documents than my will, and they all compliment

418
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Speaker 4: each other. So if you have a power of attorney

419
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Speaker 4: does not allow people to go talk and give directions

420
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Speaker 4: to a nursing home or your doctor. And equally under

421
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Speaker 4: the Advanced Care directive, so you actually need all three

422
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Speaker 4: to fully protect you.

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Speaker 1: Can your power of attorney act as your executor in

424
00:20:46,440 --> 00:20:47,560
Speaker 1: a will, yes.

425
00:20:47,440 --> 00:20:48,720
Speaker 2: And quite commonly they do.

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Speaker 4: So you know, in an ordinary family situation, you know,

427
00:20:52,359 --> 00:20:55,000
Speaker 4: husband and wife, they might appoint each other for all

428
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Speaker 4: three for it to be an attorney, a substitute, decision maker,

429
00:20:58,480 --> 00:21:01,320
Speaker 4: and an executor. And you know, I think that that's

430
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Speaker 4: completely appropriate to do. So if you've got someone in

431
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Speaker 4: your life that you do yes, completely trust, then there's

432
00:21:06,640 --> 00:21:07,920
Speaker 4: not really any reason that they.

433
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Speaker 1: Can't do that, and it makes sense to do that

434
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Speaker 1: unless you know, you start planning worst case scenarios and

435
00:21:12,840 --> 00:21:15,600
Speaker 1: think what if you're both in an accident for instance?

436
00:21:15,640 --> 00:21:18,720
Speaker 4: And yeah, those documents allow us a lot of flexibility

437
00:21:18,760 --> 00:21:20,879
Speaker 4: with how we draft them. So it does it require

438
00:21:20,920 --> 00:21:23,480
Speaker 4: you just to put one person's name forward. We can

439
00:21:23,560 --> 00:21:26,119
Speaker 4: put one person's name forward and a personal people as

440
00:21:26,160 --> 00:21:26,640
Speaker 4: a backup.

441
00:21:27,240 --> 00:21:29,360
Speaker 2: When you're thinking about pointing people together.

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Speaker 4: There's just a question where you've got to think about, all, right, well,

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Speaker 4: should we appoint these people jointly, meaning that they have

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Speaker 4: to make every decision together, or should we make them

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00:21:39,280 --> 00:21:42,280
Speaker 4: appointed what we call jointly and severally meaning that they

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Speaker 4: can make decisions together, but they can also make decisions

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Speaker 4: individually if they need to as well.

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Speaker 1: If you've appointed them together. Is it the sort of

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Speaker 1: situation with, for instance, selling a house where if and

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Speaker 1: we spoke about this once before, I think, with what's

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00:21:55,040 --> 00:22:00,320
Speaker 1: it called tenants in common or whichever it is, can

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Speaker 1: one might think I don't want to sell the other

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Speaker 1: things I do, and they get the right to sell it.

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Speaker 1: Does the same apply with this if you have sort

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Speaker 1: of joint tenants on it.

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Speaker 2: Yeah?

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Speaker 4: So, I mean that's why it's really really careful when

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Speaker 4: you're considering, and we would ask these questions. I mean,

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Speaker 4: it sounds quite personal, but when you say I want

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Speaker 4: my two kids to do that for me, we say, okay, well,

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Speaker 4: how well do they get along? Are they going to

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Speaker 4: be able to communicate? You know, do they share the

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Speaker 4: same values? Because that kind of deciphers whether or not

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Speaker 4: you should be appointing them jointly or jointly and severally.

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Speaker 4: Because if it's jointly and severally, then one of them

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00:22:34,280 --> 00:22:37,439
Speaker 4: could go ahead and sign that sales agency agreement and

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Speaker 4: sell the house without notifying the other or consent of

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Speaker 4: the other. Now, obviously, if they were coming to me

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Speaker 4: and saying, oh, Caitlyn, should I do this without my brother?

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Speaker 4: I would say no, don't do that because you know,

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Speaker 4: there's consequences if you are not acting in you know,

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00:22:53,680 --> 00:22:56,520
Speaker 4: the person's best interests, that you could be personally and

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Speaker 4: civilly liable for that. So you would want to make

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Speaker 4: sure that everyone on the same page that the things

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Speaker 4: and the steps that you're taking are in that person's

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Speaker 4: best interest.

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Speaker 1: Amazing, so so much to consider, and that's why they

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Speaker 1: need to come and chat with you, Caitlin and Johnston

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00:23:09,920 --> 00:23:11,840
Speaker 1: with us. Thank you for your time today, my pleasure.

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Speaker 1: Thank you, and we'll speak to you next time. Caitlyn

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Speaker 1: Walkington Johnston Withers Lawyers every Thursday morning here on five

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Speaker 1: double A