Ooops!
A couple of weeks ago on our podcast, I said that Enduring Power of Attorney lasted after someone died, at least until their estate was resolved.
Turns out, this is entirely incorrect. Apologies for that.
I’ve been back to the source of my original information the NSW Attorney General’s website and realise now that I misconstrued what it says there.
However, I’m not the only person to have grabbed the wrong end of the stick. I heard recently about a lawyer writing to a strata committee to insist that their client, who had power of attorney over a now deceased relative, is still able to hold a proxy vote on their behalf.
This is not true and the lawyer should know better. The proxy expires when the person who issued it dies, regardless of any powers of attorney that might have existed previously.
My understanding is that an owner has to be listed on the strata roll before they can vote and that usually can’t happen until probate has been granted (unless the surviving relative is a co-owner of the property).
Even if the deceased owner had told the surviving relative that they would inherit the apartment, that would still have to be verified in the Will as there could be other claimants on the estate.
So the lawyer who sent a letter to the committee telling them that their client’s power of attorney meant their proxy vote was still valid was wrong.
Yeah, we all get things wrong – but I am not a lawyer. Meanwhile, this is a timely reminder that is you have assets worth fighting over when you’re gone, get a proper Will drawn up and at least checked by a lawyer.
And if you want to read some horror stories about what can go wrong if you don’t leave a proper Will behind, head to the A-G’s website.
Jimmy, an easy mistake to make.
An person who represents the owner as the attorney of the owner who is appointed by power of attorney is not a proxy, they are the owner’s attorney, entitled to do all lawful acts as if they were the owner.
When the owner dies, the power of attorney automatically ceases because someone new becomes the representative of the owner. That someone is called an executor if they are appointed under a will, or an administrator if there is no will. True it is that an executor has no power to deal with the assets of an estate until they are given a grant of probate, but they have the status of an ‘executor de son tort’ which gives them limited power to protect the assets of the deceased estate before probate is granted.
In terms of voting at general meetings, it is best to recognise only executors who have been granted probate of the deceased estate.
Of course, as you say, this only applies if the deceased is the sole owner. In a joint ownership situation, the surviving joint owner has the vote.