Sam and Anna had been together for a couple of years. Anna was pregnant with their first child, which they were both excited about. Sam also had two young children from his previous marriage. His separation had been messy, with lots of fighting over who had the children, and a lengthy property settlement, which required Sam to apply to the Court to resolve matters. Now that was behind them, Sam and Anna were looking forward to spending more time with Sam’s children and preparing for the arrival of their first baby together.

Using the proceeds from his matrimonial settlement, Sam had purchased a home which he and Anna were now living in. Anna had some money saved and she was looking at using that to buy into the property and help reduce the mortgage. They were also going to do a contracting out agreement at the same time to recognise Sam’s greater contribution to the purchase of the property, as well as the value of the shares in his business. 
However, biking home from work one evening, Sam hit a pothole on the road, was thrown over the handlebars, where he landed on his head, knocking him unconscious. His head injury was severe, and the recovery time was unknown. The doctors said that they would keep Sam in an induced coma to allow the swelling to come down and to give his brain and body time to heal. They warned Anna that when he did come out of the coma it might take a long time before he would be able to regain full functionality. 
The doctors asked Anna if Sam had enduring powers of attorney in place. Anna wasn’t sure but knew that was one of the things that she and Sam were going to sort when they went to the lawyers regarding her buying into the family home. A very distraught Anna rang the lawyers to find out. It turned out that while Sam had changed his will after he separated from his wife, his enduring powers of attorney had never been updated, and his ex-wife was still his attorney.  
Anna didn’t know what to do. The implication was that Sam’s ex-wife was now able to appoint herself as a director of the company. Anna also felt very vulnerable as it also meant that Sam’s ex-wife had decision making powers in relation to the family home. She also had access to all of Sam’s bank accounts. The powers of attorney had stated that she was able to benefit herself from Sam’s funds as they had been done when they were still married. This left Anna in a very precarious position.  
Having enduring powers of attorney in place is incredibly important. Even if you have them, it is important to review them at regular intervals ensure your wishes are carried out exactly as you intend. Especially if you have changes in your circumstances – in particular a separation or death of a partner. 

Tammy McLeod, Managing Director, Davenports Law