WILLS & ESTATES

A ‘Power of Attorney’ is a document you can sign to appoint another person, (your Attorney) to act for you in relation to your financial and legal affairs.

Even though you have appointed an Attorney, you can still personally carry out any transactions, such as banking and the sale of property, whilst ever you retain the ability to do so.

A Power of Attorney may only last for as long as you specify; that can be between specific dates (for example if you are going on holidays) and it can be revoked at any time. An Enduring Power of Attorney is valid if you are unable, or have lost capacity, to make decisions for yourself.

What is an Enduring Power of Attorney?

If you want the authority you give your Attorney to continue even if you lose the mental capacity to make your own decisions, you need to sign a document called an ‘Enduring Power of Attorney’.

An Enduring Power of Attorney differs from a general Power of Attorney in that:

• the intention for the Enduring Power of Attorney to continue if you lose mental capacity is expressed in the document;
• your Attorney/s must accept the appointment before the Power of Attorney can come into effect;
• your signature is to be witnessed by a person such as a Solicitor, Barrister or Local Court Registrar. The witness cannot be the person you propose to act as your ‘Enduring Attorney’;
• the person witnessing your signature must also complete a certificate about your understanding of the nature and effect of the document;
• you can appoint more than one Enduring Attorney if you wish.

When can an Enduring Power of Attorney be given?

An Enduring Power of Attorney must be made when you are of sound mind. You can make Enduring Power of Attorney arrangements that come into effect immediately, or that remain ‘dormant’, and only come into effect in particular circumstances. For example, you could decide to complete an Enduring Power of Attorney that becomes active only when you are unable to manage financial matters for yourself, or whilst you are away overseas

Who can I appoint as my Attorney?

The person you appoint should be someone you trust. He or she must be 18 years or over.

Can an Attorney look after my real estate interests?

If you want your Attorney to be able to sell or deal with real estate on your behalf, the Power of Attorney must be registered with the Land and Property Information Service. It is also a good idea to register the Power of Attorney if you want your Attorney to be able to sell or deal with shares on your behalf, as some brokers or companies may require this, even though the law does not.

If you need a Power of Attorney contact our office to arrange for one of our Solicitors to draw up a Power of Attorney for you.

What is an Enduring Guardianship?

An Enduring Guardianship is a power created by a document where one person appoints another person/s to make medical, health care and lifestyle decisions in the event of mental incapacity of another person.  The document can specify your wishes as to medical treatment, accommodation and lifestyle decisions.

An Enduring Power of Guardianship is a separate document to your Will or Enduring Power of Attorney. Normally an Enduring Guardianship is an adult person who is not involved in your professional or administrative treatment, for example, your spouse, children or close friends are usually the best to appoint.

Probate is the formal administration of a deceased estate. This involves applying to the Supreme Court for a grant of probate. Either your executor or your solicitor may make an application for probate.

If there is no Will then assets will be distributed in the following order:

1. Spouse or defacto spouse
2. Children
3. Parents
4. Brothers and sisters
5. Grandparents

Dealing with the estate

After obtaining Probate, or alternatively Letters of Administration (where there is no Will) all assets of the estate must be collected, all debts must be paid and then the balance will be distributed in accordance with the terms of the Will.

Assets include:

• Money in bank accounts
• Insurance Policies
• Real property
• Motor vehicles
• Personal items
• Superannuation

Each asset may have to be dealt with in a different way.

Creditors usually have to wait until the estate is administered to receive payment.

Contact one of our Solicitors so we can help you make this often difficult time, much easier.

A family provision claim is when someone contests a deceased persons will. This can happen either when the deceased person lacked understanding or an eligible person has been left out of the will. Sometimes, these scenarios are linked.

The law only allows certain people to make a claim against the provisions set out in a Will if they are eligible and have been left with inadequate provision.

If you are:

1. A spouse of de facto partner of the deceased;

2. A child of the deceased; or

3. Fall into a certain category of dependant of the deceased,

then you may be eligible to make a claim.

You must make a claim within twelve months of the date of death. It is therefore vital that you seek legal advice quickly.

If you think you have not been adequately provided for in a will, or a person close to you has died and you suspect they lacked understanding or capacity when they wrote their will, contact us to find out what to do next.