Wills and Powers of Attorney – Plan Ahead

20 Nov 2015
Author: DTI Lawyers
 
We strongly encourage adults to have a current Will (to deal with what should happen when you die) and current Powers of Attorney (to deal with your affairs if you are unable to deal with them yourself).

Wills
A Will is an important legal document which states your wishes of how you wish your property to be distributed when you die. It covers the following areas:
  • The appointment of an Executor – the person who is responsible for carrying out your wishes.
  • If you would like to leave any specific gifts or personal property to a specific person.
  • Any specific wishes you may have in relation to burial, cremation, the donation of your body for the purposes of organ transplant, tissue grafting or medical research.
  • Any wishes you may have in relation to funeral arrangements.
  • The appointment of a guardian, a person who is responsible for looking after your children who are under the age of eighteen, in the event of your death.
    Because your Executor is not under an obligation to carry your wishes relating to funeral arrangements, or the appointment of a guardian, it is important to ensure you appoint an Executor that you trust to carry out your wishes.

    When you enter into a marriage or civil union this will revoke any existing Will you had, unless your marriage or civil union was contemplated in your Will. However, in most circumstances, when you marry or enter into a civil union, you should make a new Will. Likewise, separating from your spouse or civil union partner should also prompt you to make a new Will as your existing Will prevails until the day a separation order is made or the marriage or civil union is legally dissolved.

    You should have your Will prepared by a legal professional, or your Will may not satisfy the strict legal requirements that are required to create a valid Will.

    If you die without a Will you will die “intestate”, this means that your property is distributed in a manner consistent with the Administration Act 1969. This could mean that people that you did not intend to inherit and benefit from your estate could, and if you have no family; your estate may go to the government.

    Making a Will is therefore an important task which requires consideration and thought. It is not an exercise that should be done in haste. It is recommended that you take time to talk to a lawyer to discuss various options to ensure your Will reflects your wishes.

    Living Will
    You may also want to consider a living Will. A Living Will is an advanced directive that you wish to be medically treated in a way of your choice should you suffer an illness or accident. A living Will is not a substitute for an enduring power of attorney for personal care and welfare.

Powers of Attorney
An attorney is someone who you appoint to exercise any powers you yourself could, while you have legal capacity. There are two types of powers of attorney documents: property; and personal care and welfare.

Property
Your attorney for your property is required to look after your property, this includes your home, money and other assets. You can appoint more than one person as attorney for your property, this means you can choose to appoint a professional such as a lawyer or accountant, along with someone else you regard as responsible and trustworthy.

A power of attorney in relation to property can be what is termed an enduring power of attorney. This means that if the donor loses mental capacity the power of attorney remains valid. If the Power of Attorney in relation to property is not enduring then it will automatically be revoked if the donor no longer has mental capacity.

Personal Care and Welfare
You can only appoint one attorney for your personal care and welfare and this person will make decisions about your care when you become mentally incapable. This person is often a close family member or friend.

Powers of Attorney in relation to personal care and welfare can only be used once the donor loses mental capacity. Most rest homes will require as a precondition to acceptance that the resident has Powers of Attorney in place.

Substitute attorneys can be appointed under both types of Powers of Attorney if the main attorney is unable to act.

In the event that you lose capacity and do not have Powers of Attorney in place the process involves an application to the Family Court which is expensive and time consuming. Accordingly, it is a good idea to plan ahead and have them in place before an unforeseen accident or medical condition occurs.

DTI Lawyers can help
The team at DTI lawyers are happy to assist if you and discuss putting in place a Will or Powers of Attorney. We can talk to you about the various options and work with you to put in place appropriate asset planning structures that are tailored to your specific requirements.

Article by DTI Lawyers