Why make a will?
Without a Will, you lose the opportunity to:
- Appoint your executor
- Distribute your estate to your chosen beneficiaries
- Structure your gifts in the best way for the recipients
- Create a tax effective structure
- Create an asset protection structure
There are two types of Wills you can make:
- A Give Will:This is where you give the estate to your beneficiaries outright. Remember, if you give it, it’s gone. If you draft a give will, the assets you have given to your beneficiaries are entirely exposed to lurking creditors, potential matrimonial disputes and tax consequences that could otherwise be avoided.
- A Testamentary Trust Will:Instead of giving your estate to your beneficiaries outright you give your estate to trusts set up under your will. In these trusts, you can design the decision-making processes, the distribution processes and create effective asset protection strategies.
A testamentary trust will can give your beneficiaries asset protection against:
- Their creditors
- Matrimonial property disputes
- Them becoming of unsound mind
- Claims on their estates
Through our comprehensive and educational estate planning process, our lawyers work with you to design a will that fulfils your wishes and allays your fears.
Power of Attorney
Appointing an Enduring Power of Attorney
When circumstances change and you are unable to make financial decisions due to illness or incapacity have you considered who will make these decisions for you?
Appointing an enduring power of attorney is an important step in planning for your future.
What is an Enduring Power of Attorney?
An enduring power of attorney is a legal document that nominates a person (or persons) you trust with the power to make important financial, property and some personal decisions for you.
Some of the powers of your attorney include the ability to:
- Manage your money and bank accounts;
- pay your bills;
- manage, sell or rent out your home; and
- sign certain documents.
The difference between an ‘Enduring’ Power of Attorney and a General Power of Attorney is that it lasts, or endures, even if you, the person giving the Power of Attorney, become unable to make your own decisions.
Who can appoint an Enduring Power of Attorney?
To ensure your enduring power of attorney is legally binding, you must be:
• 18 years old or over; and
• of sound mind.
What should I consider when appointing my Enduring Power of Attorney?
Key factors include:
- When deciding who your attorney will be it is important you choose someone who you trust and who will act in your best interests. Who you choose can be any competent adult over the age of 18 years;
- When you want your attorney to receive their power i.e. when you sign the document or when you become of unsound mind; and
- What exactly your power of attorney will have authority over and whether there are any restrictions you want to place on their power.
Why do I need an Enduring Power of Attorney? Can I not just give this authority to someone with this document?
If you don’t have an Enduring Power of Attorney and become of incapable of making your own decisions no person has the right to make your financial decisions. In order for someone to manage your assets they will need to make an application to the NSW Civil and Administrative Tribunal – NCAT.
This is a lengthy and arduous process and can be easily avoided.
How we can assist you
An enduring power of attorney is not a simple document. You are entrusting a significant amount of power to someone. It is important to get it right, you do not want to run the risk of preparing an invalid enduring power of attorney. There may be conditions or restrictions you may want to place on the attorney such as the power only coming into operation if you are overseas or only if you lose capacity. You may wish to appoint co-attorneys to act jointly to make decisions.
Everyone’s needs are different and it’s important to speak with us to ensure your wishes are met.
A lawyer must explain the document to you for it to be enforceable. If you draft your own you run the risk of it being ruled invalid.
Please contact our expert team today on 9964 0499 to arrange a time to come in for a consultation to discuss your needs and get started on your enduring power of attorney.
Appointment of an Enduring Guardian
Have you considered what will happen to you if you find yourself unable to make lifestyle and medical decisions due to illness or accident?
When we are under the age of 18 (“age of majority”) our parents or our legal guardians are our legal guardians and make decisions about us in relation to our care and physical welfare. Once we attain the age of majority, our parents or our legal guardians lose the right to make decisions on our behalf.
Appointing an enduring guardian is strongly recommended to ensure that your interests are protected if you were to ever become incapacitated or of ‘unsound mind’.
What decisions can my enduring guardian make?
An enduring guardian makes lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. The decisions they can make include deciding where you live, what personal services are provided to you at home or what medical treatment (including dental) you receive.
When does the appointment of my enduring guardian take effect?
Importantly, the appointment of your enduring guardian takes effect only if you become unable to make your own person or lifestyle decisions and only “during such period of time as you are a person in need of a guardian”.
Why you need an Enduring Guardian
Appointing an Enduring Guardian can give you a sense of security knowing that if anything happens and you are no longer able to make decisions for yourself you have appointed someone you trust to make medical, health and lifestyle decisions on your behalf. It also avoids the situation where an application to the Guardianship Division, NSW Civil & Administrative Tribunal will have to be made to have a guardian appointed to you.