Wills Powers of Attorney and Enduring Guardianship

Making a Will

A ‘Last Will & Testament’ (often simply called a ‘Will’) is a written record of how you would like your assets shared or distributed after your death.

However, making a will involves much more than just writing down a list of your assets and the people you want to leave them to. It is one of the most considerate things you can do for the people that matter most in your life and it is something that needs careful thought and planning in order to ensure that your wishes will be able to be fulfilled.

Having a Will gives you peace of mind that you have made your wishes clear as to how you want your assets to be divided up and administered.

Regardless of the size of your estate, what you do not want is for costly legal disputes to arise in respect of your assets. Disputes between would be beneficiaries can quickly consume an estate and properly prepared Will is the first step in avoiding this scenario.

Updating your Will

It is sensible to review your Will periodically. If your personal circumstances change it is especially important to review your Will to take into account those changes.

Important life changes such as marriage, divorce, the birth of children and any change in personal financial circumstances such as receiving an inheritance or buying a property are also relevant milestone points at which to consider updating a Will.

Are there rules about who I can leave my assets to?

While in theory you are able to prepare a Will leaving your estate to whomever you please, even if that is a home for stray cats, in reality it is very important to seek legal advice on this point.

Relevant matters may include whether you have any infant children or other dependents. In situations involving blended families or estranged children careful consideration also needs to be given to the likely impact of leaving individuals out of a Will and whether this is likely to lead to a costly legal dispute.

Appointing an Executor

The question of who to appoint as executor is an important decision and something we can guide you on when preparing your Will.

It is important to seek legal advice prior to preparing or updating a Will. A validly prepared, properly witnessed and current Will is a good step in the right direction in ensuring that your assets are distributed how you want and to whom you want after your death.

What is a Power of Attorney?

A Power of Attorney is a legal document that allows someone to choose another person to make decisions for them in the event that they are unable to make decisions for themself.

If you are the holder of a Power of Attorney any decision you make will have the same legal effect as if the person who appointed you made the decision themselves.

Different types of Power of Attorney?

The two main types of Powers of Attorney are an Enduring Power of Attorney and a General Power of Attorney. Each type of Power of Attorney serves a useful but different purpose and we recommend you contact us to discuss your particular circumstances so that we can advise you as to the most suitable for your needs.

An Enduring Power of Attorney is useful if you are planning for the future and continues even when a person is unable to make a decision themselves, say as a result of accident or illness.

An Enduring Power of Attorney continues even after you have lost capacity to make a decision and may last up until an individual’s death at which time the Executor appointed under a person’s Will takes responsibility for all decisions associated with the administration of the deceased’s estate.

On the other hand, an Ordinary Power of Attorney does not last indefinitely and is more like a one-off power that is issued for a set period of time and a set purpose. For example, if you are buying a home and will be overseas at the time the sale is finalised you may give someone a Ordinary Power of Attorney to finalise the sale on your behalf. In that example, the Ordinary Power of Attorney will end as soon as the sale is finalised.

Enduring Guardianship

Appointing an Enduring Guardian is different from giving someone your Power of Attorney.

An Enduring Guardian is empowered to make a range of lifestyle decisions including such things as where you live and what health care and other services are provided to you. If you lose capacity to make these decisions for yourself at some time in the future, an Enduring Guardian is able to step in and make them for you.

It is important to remember though that an Enduring Guardian cannot usually make decisions about the handling of your money or assets. In order to grant someone that power you will also need to give them an Enduring Power of Attorney in addition to making them your Enduring Guardian.

How we can help

It is always sensible to plan ahead not just for expected end of life events but even things as simple as travelling overseas for an extended period of time which may mean you need someone to keep an eye on things for you back at home.

If you or someone you know or care about is considering making a new Will or appointing an Enduring or Ordinary Power of Attorney or would like to consider appointing an Enduring Guardian it is important that you fully understand these documents properly.

Our lawyers have considerable experience in assisting our clients with these important life decisions and is able to work with you to compassionately and clearly explain your options and prepare all necessary paperwork to ensure that any appointments are well thought out, clear and legally valid.

To find out more information or to arrange an appointment, please contact Kathy Matri on 02 4322 0251 or email us at [email protected]