Estate Planning, Guardianship and Administration
A will allows a person to put their affairs in order and leave their assets to whom they want. A will also allow a person to appoint a trusted person to carry out their wishes.
For a will to be effective it must be properly prepared, signed and witnessed. If a will is not prepared in accordance with the legal requirements the whole will or parts of it may fail.
There are assets that do not form a part of a person’s estate and cannot be dealt with under a will. Assets that cannot be left under a will include property held with others as joint tenants, most superannuation, trusts and other interests such as business partnerships where agreements are in place as to what happens in the event of death.
Superannuation is an asset that most people believe forms a part of their will or is distributed to beneficiaries they nominated in their superannuation document. This is incorrect. Unless a person makes a binding death nomination their superannuation will be distributed in accordance with the relevant legislation, not their will or their nominated beneficiaries. Binding death nominations are only valid for two to three years. Unless a person renews the binding death nomination it lapses.
Where property is held as joint tenants it cannot be left under a person’s will. The surviving joint tenants are the only ones entitled to the property. This results in harsh and unjust outcomes.
Property that is held by a trust, whether a family trust or discretionary trust cannot be left under a will. It will be dealt with in accordance with the relevant laws that apply to such assets.
We take the time to get a full understanding of your situation to ensure that your estate is distributed in accordance with your wishes. We also advise you fully of potential claims against the estate and what steps you can take during your lifetime to avoid or minimise such claims.
We make sure that clients understand their wills and the consequences of each decision they make.
Powers of attorney
When you are healthy and able to make decisions it is hard to turn your mind to what would happen if you became sick and could not make decisions temporarily or permanently. If you lose capacity and cannot make decisions someone will have to make medical, legal, financial and lifestyle decisions for you.
While you know what you are doing and can make decisions you can nominate the person who will make such decisions for you if you lose capacity. YOu can only appoint an attorney under a power of attorney while you understand what you are doing and what it means to appoint someone as an attorney.
If you lose capacity you cannot appoint an attorney and it will be up to the Victorian Civil and Administrative Tribunal (VCAT) to do so.
If you appoint an attorney while you have the capacity, you appoint the person you trust and it is an easy and inexpensive procedure. However, if VCAT appoints someone it can be lengthy, expensive, it may lead to disagreements between family members and it may not be the person you would have appointed. VCAT may appoint the State Trustee to make decisions on your behalf.
The powers of an attorney can be limited. The most common limitations are the amount of money that an attorney can withdraw from bank accounts or that the powers can only be used if the giver of the power (grantor) loses capacity.
However, powers of attorney have a very practical application. If a person is going to be absent from Victoria for any period of time the power of attorney can be used to deal with the government, authorities, bank accounts and any legal matters.
We believe very strongly that every person over 18 years of age should appoint an attorney to make decisions for them in the event they lose capacity.
There have been significant changes to powers of attorney for medical decision making. There are now many different decisions that an attorney can make. We regularly advise on and prepare powers of attorney for medical decisions.
Administration and guardianship
Making or defending an administration or guardianship application or decision is a very specialist and complex process. It is also one of the most important areas of law as it is about the ability and right of a person to make decisions for themselves, their dignity and their independence. These are things that are fundamental and we take for granted.
We have advised our clients and guided them through this complex legal, medical and personal process. To ensure that an elderly or vulnerable person has their wishes respected, and where necessary, an administrator or guardian appointed who is only motivated by the welfare and best interest of the protected person is rewarding and of the utmost importance.