Your Guide to Wills Explained in Plain English:
When Do You Need a Will?
A Will is a legal document that sets out who you want to receive your assets when you die. Making a Will is the only way you can ensure your assets will be distributed according to your wishes when you die. If you die without a Will your estate will be distributed according to a pre-determined formula and, if your only living relatives are more distant than cousins, your estate will pass to the government.
There is no particular age at which people need to have a Will. Anyone over the age of 18 can have a Will and often people put off writing a Will for far too long.
What Information is Required?
The following are just some of the aspects we will consider before we finalise your Will document to ensure that your Will is appropriate for your circumstances:
- The assets you currently own and how they are held to determine what type of Will is appropriate for you.
- Your family circumstances as each Will is different depending on these circumstances.
- Whether protecting certain beneficiaries’ inheritance or crafting a tax effective estate plan is of relevance to you.
- The choice of your executors.
- Whether you have young children and the consideration of appropriate guardians to be nominated for them
Where is My Original Kept?
Most people realise the importance of making a Will. However, a Will can only be used if it can be found when required. It is important to store your original Will in a safe place. It is a good idea to tell someone close to you where your Will is stored. Alternatively, your solicitor can store your Will.
When Should I Update My Will?
You should revisit your Will at least every 5-7 years as a guideline and also consider updating it sooner if:
- your financial circumstances change
- your family circumstances change (for example, getting married or divorced renders your previous Will invalid)
- a beneficiary under your current Will dies or may become bankrupt
- an executor or trustee appointed under your current Will dies or becomes unsuitable to act due to age or ill-health
- you sell or give away assets that are specifically mentioned in your Will
- you buy or inherit significant assets
Enduring Power of Attorney Explained in Plain English:
What is an Enduring Power of Attorney?
An enduring power of attorney is a legal document which you can use to appoint a person to make decisions about your property and financial affairs which continues to be effective even if you lose capacity. An enduring power of attorney may be requested to commence immediately (before lack of capacity) for example. The person who makes an enduring power of attorney is known as ‘the principal’. The person who you appoint to make decisions for you is known as ‘the attorney’.
Why Appoint an Enduring Power of Attorney?
If you do not have an enduring power of attorney and you lose mental capacity, there may be no one with legal authority to manage your affairs. This may mean that the Guardianship Tribunal or the Supreme Court will need to appoint a financial manager for you.
What Decisions Can the Enduring Power of Attorney Make?
The attorney can make decisions about your property and financial affairs. This means that they can operate your bank accounts, pay your bills and sell or buy property on your behalf. There are a few legal tasks that cannot be performed by an attorney – for example, an attorney cannot make a Will for the principal. An enduring power of attorney also cannot be used to make medical or lifestyle decisions for you.
When Does an Enduring Power of Attorney End?
An enduring power of attorney ends:
- when you revoke it (so long as you have capacity at that time);
- on your death;
- when you have only appointed one attorney and that attorney dies or can no longer act as your attorney;
- when you have appointed two or more attorneys to act jointly and one of them dies or can no longer act as your attorney (unless you provide otherwise which is usually done so that the surviving attorney can continue to act).
Appointment of Enduring Guardians in Plain English:
What is an Enduring Guardian?
An enduring guardian is someone you choose to make personal and lifestyle decisions on your behalf when you are not capable of doing this for yourself. You can appoint more than one guardian if you wish. You choose which decisions you want your enduring guardian to make and give directions on how to carry out these functions
Who Can Appoint an Enduring Guardian?
You can appoint an Enduring Guardian for yourself if you are an adult (over 18) and you have capacity.
What Decisions Can the Enduring Guardian Make?
Your Enduring Guardian can only make medical, health and lifestyle decisions on your behalf. The most common decision-making areas or functions for an Enduring Guardian are:
- Accommodation – to decide where you live: aged care facility or hospital.
- Health care – to decide what health care you receive. This function gives authority to your Enduring Guardian to choose or change your doctors (or other health care professionals) and make decisions about end of life treatment
- Services – to decide what personal services such as attendant care, domestic support, recreational services you should have to support and assist you.
- Consent to medical and dental treatment – to give or withhold consent to medical and dental treatment on your behalf.
What Decisions Can the Enduring Guardian Not Make?
An enduring guardian cannot make a Will for you, vote on your behalf, consent to marriage, manage your finances or override your objections to medical treatment.
When Does Enduring Guardianship End?
Enduring guardianship ends when you die, if you revoke the appointment, or if the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) makes a guardianship order or suspends the appointment.
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DISCLAIMER: This guide is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.
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