Wills, Powers of Attorney and Advanced Directives
We strongly encourage all 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).
We can assist with drafting and providing advice about:
- General Powers of Attorney
- Enduring Powers of Attorney as to Property and Personal Care andWelfare
- Advance Directives
There are a number of issues you need to be aware of when making a Will. They include:
WHAT IS A WILL?
It is a legal document which sets out your wishes as to who should receive your assets when you die and appoints the person who you wish to administer the Estate (the Executor).
We can assist you in drafting the Will as well as providing guidance as to the sorts of matters that can, and should, be included in a Will.
WHAT IS AN EXECUTOR?
The Executor is the person or corporation appointed by you to carry out your instructions after your death. You may appoint more than one Executor. An Executor may be a member of the family, a friend, your Lawyer or other professional advisor, and may also be a beneficiary.
WHAT IS A BENEFICIARY?
Beneficiaries are the persons or charities to whom you wish to leave your assets.
WHAT IS A TESTAMENTARY GUARDIAN?
Your Will may, if you wish, name a Testamentary Guardian or Guardians for your infant children. A Testamentary Guardian does not necessarily have the care of your children after your death, but that person will have a say in the important decisions affecting the care of your children.
ARE THERE RISKS IN WRITING MY OWN WILL?
Yes there are. The Wills Act is quite specific as to the form, content and manner of execution of your Will. If there is not full compliance with the requirements of the Act then it is likely that you do not have a valid Will. Some people attempt to prepare their own Will using a pre printed form but unfortunately they frequently make errors resulting in an invalid Will.
WHAT IS A MEMORANDUM OF INTENT?
It is a document, usually prepared by you at the time you make your Will, setting out your reasons:
- Why certain people have been made beneficiaries
- Why others have been left out of the Will
- Why certain others have been bequeathed particular assets Why others have not
In many situations a Memorandum of Intent will not be required. However, if you anticipate that there could be a dispute after your death then such a Memorandum would be useful evidence of your intentions. We can assist you by providing advice as to the contents of the Memorandum.
WHEN SHOULD I UPDATE MY WILL?
If you already have a Will then you should regularly consider whether it may be out of date. Your circumstances and the circumstances of the people named in your Will can often change.
Good reasons for reviewing your Will are:
- Birth of a child.
- Commencing a relationship
- Ending a relationship
- Death of a family member, executor or beneficiary
- Significant change in your assets
Your Will should be reviewed regularly, certainly at intervals of not more than five years.
ARE THERE DIFFERENCES IN THE LAW FOR WILLS BETWEEN MARRIAGE RELATIONSHIPS AND DE FACTO RELATIONSHIPS?
Yes there are.
If you have an existing Will and then get married, your Will is automatically revoked upon the new marriage unless the Will is stated to be in contemplation of that marriage. The Will needs to be carefully worded to ensure that it remains a valid Will after your marriage.
For de facto relationships, your existing Will continues to be valid even if you enter into a new relationship. It is therefore essential that upon ending a relationship, but before commencing a new relationship, you review your Will.
A general Power of Attorney is a written authorisation to represent or act on another's behalf in legal matters when physically incapacitated or overseas. The person granting the authority to act is the Grantor whilst the person receiving the authority is the Attorney. A General Power of Attorney is only valid whilst the Grantor has legal capacity.
We can prepare General Powers of Attorney for you.
There are a number of issues you need to be aware of when making Enduring Powers of Attorney. They include:
- What is an Enduring Power of Attorney?
- What is an Enduring Power of Attorney as to Property?
- What is a Power of Attorney as to Personal Care and Welfare?
- What is the process for signing Enduring Powers of Attorney?
WHAT IS AN ENDURING POWER OF ATTORNEY?
An Enduring Power of Attorney is a particular form of Power of Attorney which remains valid even if the Donor becomes mentally incapable (i.e. legally incapable). It is authorised by the Protection of Personal and Property Rights Act 1988 ( the Act ) which was enacted to cover eventualities of mental incapacity such as those caused by accidents or illness. There are two forms of Enduring Power of Attorney Property and Personal Care and Welfare.
We can assist in drafting both.
WHAT IS AN ENDURING POWER OF ATTORNEY AS TO PROPERTY?
It is a form of Enduring Power of Attorney which relates to property (all assets and liabilities). With this form of Enduring Power of Attorney you may have one or more Attorneys and it becomes operative, at your discretion, either at the same time of signing or if you become mentally incapable.
We can draft these documents on your behalf.
WHAT IS AN ENDURING POWER OF ATTORNEY AS TO PERSONAL CARE AND WELFARE?
It is a form of Enduring Power of Attorney which relates to non-property issues such as medical care, accommodation matters and personal issues. With this form of Enduring Power of Attorney you may only have one Attorney and it becomes operative only if you become mentally incapable.
We can draft these documents on your behalf.
WHAT IS THE PROCESS FOR SIGNING POWERS OF ATTORNEY?
We are required to give you legal advice as to the effects and implications of such Enduring Powers of Attorney without the intended Attorney/s being present. We must be satisfied that you have legal capacity to understand the nature of the power/s being given. Then we must witness your signature and certify that we have complied with the requirements of the Act. We cannot witness the Attorney's signature.
There is now a greater demand to have a person's wishes relating to ongoing health issues recorded. An advance Directive specifying these wishes is a guide to your Attorney, family members and health care providers, enabling them to make decisions where and when possible in accordance with your wishes. A recent amendment to the Act now requires the Attorney to give consideration to the Advance Directive. However the Advance Directive is not legal binding on your Attorney or others where it may be in conflict with medical and legal requirements.
We can provide you with advice in respect of preparing an Advance Directive.