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What powers do spouses have over each other?

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“But I’m his wife!” pleaded Isobel after I recounted the small matter of the law to her one day .

It all started, in a nutshell, when Isobel came to see me about her frustration with the legal system (a common issue I confront and share). Her husband operated a small business, quite successfully, and employed some 10 people. One day, as the fickle finger of fate would have it, he had a stroke and ended up in intensive care. He was in hospital for another three months and has remained an invalid in a semi-conscious state and unable to make his own decisions. He was 54 at the time.

Her husband had operated the business as a sole trader. In other words, he was the sole owner and everything revolved around him in terms the operation of the business and, particularly, its finances. He made all the decisions, albeit in consultation with Isobel. They were a team but importantly, from the law’s point of view, they were not a partnership.

That fact became a major business headache for Isobel. In desperately wanting to continue the business to support him and the family, Isobel quickly confronted an ugly law. As I explained to her that day in my office, she could do nothing to control or manage the business.

Why?

As the spouse or, as we traditionally refer to them, the ‘next of kin’, she had no power to make financial decisions for her husband now that he had lost his capacity. However, she could have, if her husband had made an Enduring Power of Attorney appointing her. Trouble was, he hadn’t.

The consequence was that Isobel was required to apply to a Tribunal, QCAT, to be appointed her husband’s administrator. That took time and money. She was eventually appointed some three months later. The time in between was a living hell for her and, but thanks to the grace of the bank and the employees, she just managed to keep it alive.

There is always an unintended consequence to doing nothing.

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