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Wills & Powers of Attorney

Most people think about making a Will and Power of Attorney when they are about to go overseas, start or end a relationship, have a child, or go into hospital. The right time for preparing these documents, however, is NOW. You just don’t know what tomorrow holds and putting off your Will and estate planning needs can cause undue complexity, expense, and unintended consequences for you and your family.

Preparing Your Will

Many people do not have a Will or have one that is out of date. You need a properly drawn Will, so you decide what happens to your estate when you die. Your Will represents your final wishes, and its effects can last for many years after your death.

We have extensive experience in drafting Wills and can advise on the issues you should consider before your Will is prepared, such as your choice of executor, beneficiaries, and alternative executors and beneficiaries. You may also wish to benefit a charity. We will confirm the assets that can be included in your Will and those that cannot (such as joint assets and superannuation). We will identify any beneficiaries you ought to include to minimise the potential of a claim against the estate after your death. You may also require special provisions to ensure the protection of assets for the benefit of a person with a disability, a spendthrift or someone in a difficult personal relationship.

Family dynamics and assets fluctuate from year to year and blended families require special consideration. There is no one-size-fits-all solution when it comes to estate planning for the blended family. However, by identifying the potential issues that could arise, and considering some options to address these, an effective Will can be prepared. The important thing is to discuss your circumstances and objectives with your lawyer so that your wishes can be properly set out in all your estate planning documents.

If you are not sure where to start with preparing your Will you can use our simple online enquiry form (online will enquiry form)

Powers of Attorney

A Power of Attorney allows you to appoint someone you trust to act on your behalf when you are unable to do so. For example, if you are travelling overseas or if you are no longer physically able to attend the management of your financial affairs, then a Power of Attorney allows you to appoint someone else to carry out banking and attend to business matters on your behalf.

A Power of Attorney can also be enduring which means that if you lose mental capacity on account of brain damage, a coma, stroke or dementia the appointment will remain effective, and your attorney can continue to attend to all financial matters on your behalf.

A Power of Attorney may contain clauses enabling your attorney to provide benefit to others besides you (such as your spouse or children). An Enduring Power of Attorney requires a Solicitor’s Certificate.

Enduring Guardianship

An Appointment of Enduring Guardian allows you to nominate in advance the person you trust to make personal and lifestyle decisions (not financial) on your behalf according to the terms of their appointment. For example, if you suffer a stroke or other debilitating medical condition, or are injured in an accident, you may be incapable of making decisions about your medical treatment, the services you receive, or where you should live.

An Appointment of Enduring Guardian can also include your wishes on end-of-life issues.

It is important to put these measures in place while you are mentally and physically able to do so. This enables potential future problems to be dealt with according to your wishes and avoids the involvement of the Guardianship Division of the NSW Civil and Administrative Tribunal in appointing government bodies to make such decisions on your behalf.

Estate planning and capacity

‘Capacity’ refers to an individual’s ability to make their own decisions particularly in relation to issues such as health, finance, legal responsibilities and lifestyle choices. Daily decision making can range from simple decisions such as what you would like to eat or whether you would like to visit someone, to decisions as to where you should live, whether you should enter a nursing home or make a Will.

Capacity is vital to making decisions about legal matters including signing a Will, buying and selling property, entering into contracts and taking on mortgages. Issues of capacity often arise for older clients or clients who may be suffering from mental or physical disabilities and ill health. It is therefore essential to assess a person’s capacity before legal decisions are made and to determine whether a substitute decision maker should instead be appointed.

We can assist with the complex issue of assessing capacity and applications to the Guardianship Tribunal for or appealing the appointment of substitute decisions makers.

If you need assistance, contact one of our lawyers at [email protected] or call 02 9929 8777 for expert legal advice.