Estate Planning
Our Services
- Will
- Enduring Power of Attorney
- Appointment of Enduring Guardian
- Advanced Health Care Directive
- Superannuation Binding Death Nomination
Why have an Estate Plan?
Estate planning gives you the opportunity to make your wishes clear in the event of your incapacity or death. Properly documenting your intentions can spare your loved ones unnecessary stress and cost that can arise if you lose capacity to manage your affairs, or if you die without having a proper estate plan in place.
What happens if You die without a Will?
If you die without a valid Will, the statutory framework in the Succession Act will apply to determine how your assets are to be distributed. These rules may mean that your estate is not distributed in accordance with your wishes.
The administrator of your estate will have extra work to do before being able to access and distribute your estate. They will be required to make searches and enquire with solicitors, banks, and others, to prove to the Supreme Court of New South Wales that you did not leave a Will.
If there is a dispute about your estate, the Court will not know what your intentions were as you have not left a Will. This means they may determine the dispute in a way that you would not have wanted.
I have a Will already- do I also need an Enduring Power of Attorney and Enduring guardian?
A Will only deals with what is to happen after you have died. It does not empower any person to make decisions for you while you are alive.
If you wish to appoint somebody to make decisions for you on your behalf, you will need to appoint an Enduring Attorney (for financial and legal decisions), and an Enduring Guardian (for decisions regarding your health and where you live).
If you lose capacity to make decisions for yourself without having appointed an Attorney or Guardian, it may become necessary for a family member or friend to make a Tribunal application to seek to be appointed as your financial manager or medical guardian. The Tribunal may decide to appoint the NSW Trustee & Guardian to manage your financial and medical affairs.
Without a valid Enduring Power of Attorney and Enduring Guardian in place, there may be delays or complications in managing your everyday affairs such as paying your bills, accessing bank accounts, managing your assets, or arranging suitable care and accommodation.
It is therefore strongly recommended that you make an appointment of enduring power of attorney and enduring guardian to appoint a suitable trusted person to take on these roles to avoid the complications that may arise if you lose capacity without all the appropriate appointments in place.
What safeguards can be put in Place in a Power of Attorney
A Power of Attorney gives another person important authority to act on your behalf, so it's essential that your attorney is somebody whom you trust and who is capable of making important decisions on your behalf. Careful drafting can help limit the authority granted by the document where necessary, and encourage responsible management. For example you can specify that the power only comes into effect once a medical practitioner certifies that you cannot manage your own affairs, set conditions around major decisions, or appoint more than one attorney to act jointly. Limiting a Power of Attorney can offer valuable protections, but may also introduce complexity. It is important to seek legal advice to ensure the document best suits your circumstances.