Divorce and POAs

Is a POA revoked when you separate or divorce? Divorce and marriage generally ends your Will.

However, separation does not affect an existing Enduring or Lifestyle POA.

Does the Power of Attorney appoint your ex-spouse as your attorney?

While QLD and the ACT have special rules, separation and divorce do not nullify your POA. Your ex can still use your POA. Sure, a POA can only be used in your best interest. But what is in your ‘best interest’ is an open-ended question.

Worse still, if you become of unsound mind then your ex is legally obliged to take up the job of being your attorney. Your ex cannot escape this onerous duty without a court order. In those times, your ex must get the accountant and financial planner to sign off on what is in your best interest. Otherwise, your ex is even more unprotected.

Abusing a person’s POA can lead to criminal charges. And this is the danger your ex suffers. For both your sakes it is better to revoke all POAs. And build new POAs.

A Power of Attorney is not revoked by divorce

Even if you appointed your spouse and you are now divorced. That is not enough to end the POA.

As soon as you separate or divorce you must prepare new POAs. Legal Consolidated’s 3-Generation Testamentary Trust Wills, Enduring POAs and Medical/lifestyle POAs can all be updated for free. As often as you wish. For the rest of your life. This is for any reason.

To update those Estate Planning documents for free just log back in. Go to “Your Documents”. And email the law firm the Tax Invoice. We give you a voucher to update the Estate Planning document.

The moral of the story:

Whether you are separated or divorced, your Powers of Attorney are not affected.

Revoke your Power of Attorney. And prepare a replacement Legal Consolidated POA for free.

Are Medical/ Enduring Guardianships revoked by divorce?

An Appointment of Enduring Guardian is not automatically revoked or terminated by either separation or divorce.

If your spouse is appointed as your Enduring Guardian, then they still make lifestyle and medical decisions. This is on your behalf. This is you are in an accident, suffer dementia or are no longer able to make decisions for yourself.

If you are still of sound mind then revoke the old POAs. And make a new Medical/Guardianship POA.

In NSW, Vic, Tas, WA and SA divorce and separation do not revoke Powers of Attorney or Medical Guardianships

In New South Wales, Victoria, Tasmania, Western Australia and South Australia, divorce and separation do not revoke Powers of Attorney or Enduring Guardian documents

Your ex as your attorney can make financial, business and legal decisions on your behalf. And bind you to those decisions. Your former partner or ex-spouse continues making financial and legal decisions. This is on your behalf. For an enduring POA this includes:

  • accessing your bank account
  • taking out loans and credit cards in your name
  • buying and selling assets, such as real estate.

For a Medical Treatment Decision Makerhttps://www.legalconsolidated.com.au/medical-power-of-attorney-intro/ and Guardian attorney, this includes, when you lose mental capacity:

  • flicking the switch when you are a vegetable
  • telling you who you can associate with
  • working out where you live and where you work

Does marriage revoke my Enduring POA and Guardianship?

Q: I appointed my ex to hold my POA. I got divorced. I am now remarried. Is my POA automatically revoked?

A: Both your Enduring and Medical POA is still operational. Your ex-spouse is still holding your valid POAs.

This is the case even if you re-marry or are in a new de facto relationship. Your ex-spouse has the power to make decisions on your behalf. But your current spouse has no such power.

But, in QLD and ACT Powers of Attorney are automatically revoked on divorce

For Queensland and Australian Capital Territory, your divorce terminates your POAs. However, breaking up from a separation does not!

While it would be against the law, your ex-spouse may still try and use your POA at the bank. The bank may be unaware of your divorce.

As soon as you separate you should revoke your POAs with your ex. Do not wait for the divorce.

Update your Will.

Super going to a spouse at death is tax free. Super going to adult children suffers up to 32% tax

Superannuation going to a spouse is tax-free. But you are no longer leaving super to your partner.

Superannuation going to an adult child suffers up to 32% tax. But a Superannuation Testamentary Trust in your Will to wash out and get rid of this non-dependency tax.

Can my attorney get a divorce for me?

I hate my wife. We are separated. I want to get a divorce. But I now become of unsound mind. My hot new girlfriend holds my new Enduring POA. Can my hot new girlfriend apply for a divorce on my behalf?

The case of McKenzie & McKenzie [2013] FCCA 1013 suggests that the person holding your Enduring POA can apply for a divorce. This is on your divorce.

The facts of McKenzie & McKenzie

The wife and husband separate.

The wife then begins preparing for the divorce.

Nine months into the separation the wife has surgery. Sadly, the wife loses mental capacity.

The wife’s mother is appointed her legal guardian.

The mother, as legal guardian, applies for a divorce on behalf of her daughter.

The court agrees. There is an irretrievable breakdown between the wife and husband before the wife lost mental capacity.

But do not you need 12 months separation? And in those 12 months, both parties need to be of sound mind?

The family court said it was not relevant.

This rule is also followed in Price v Underwood (2009) FLC 93-408. In that case, the attorney for a divorce to be granted (as it evolved, one day for the principal died), waiving the normal waiting period.

These cases also applied the new rule:

  • Re an Incapable Person D [1983] 2 NSWLR 590
  • Pavey v Pavey (1976) FLC 90-051
  • Todd v Todd (No. 2) (1976) FLC 90-008
  • Falk v Falk (1977) FLC 90-247.

All that is required is that the attorney prove that the marriage has irretrievably broken down between the person of unsound mind and the partner. Such evidence is usually:

  • 12 months separation
  • with the intention to bring the marriage to an end

A person of unsound mind can not have that ‘intention’. ‘Intentions’ are the quality of a person of sound mind. But the Family Court is not one to be burdened with strict black letter law. Which is the very reason why Legal Consolidated does not practice in the area of family law.

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