One of the most complicated and heavily contested areas of law relates to the administration of Wills and estates. Unfortunately very few people have their legal affairs properly organised in a manner which will make the passing of their assets upon their deaths, stress free for grieving family members.
A Will is a document which sets out the wishes of the person signing it, with regard to disposition of the person’s property on death and the appointment of person(s) who are to carry out the instructions contained in the Will.
Anyone over the age of 18 who holds assets in their name should have a proper Will in place. A well-drafted Will that correctly expresses your wishes will ensure the smooth succession of your assets.
A common mistake is the “Do It Yourself Will Kit”. The cost of rectifying a DIY Will Kit in the event of a challenge to the Will, or even having to apply to the Court for a grant of Probate, far outweighs the cost of initially consulting a Solicitor to prepare the document.
Your Will should not be prepared without firstly taking into account your financial circumstances. A Solicitor can advise on matters such as which property can be disposed of by Will, Superannuation, assets held in companies, Trusts and partnerships, tax and Capital Gains Tax implications.
Power of Attorney
An Enduring Power of Attorney is a document whereby one person (donor) authorises another (attorney) to act as his or her agent in financial and business affairs. The person giving the Power of Attorney must be over the age of 18 and have mental capacity.
The attorney may be a family member, friend or professional adviser, and can be appointed to act either together or separately. You should only appoint a person you trust to be your attorney.
The attorney may be appointed to act either while the donor has mental capacity and continue to act when most needed if the donor loses his or her mental capacity, or act only if the donor loses his or her mental capacity. Enduring Powers of Attorney cease to be effective on the death of the donor.
General Powers of Attorney differ from Enduring Powers of Attorney in that they become ineffective if the donor loses his or her mental capacity. This makes General Powers of Attorney inappropriate as a means of delegating the responsibility for dealing with business affairs of the elderly.
Powers of Guardianship
A Power of Guardianship enables a person to appoint an Enduring Guardian to make decisions about the well being, lifestyle, medical and dental care and treatment of the donor.
The directions contained in the document might include which doctor is to treat the person, what treatment or medication the person should receive, with whom the person may associate and the maintenance or withdrawal of life support.
One or more people may be appointed to act as the Enduring Guardian, and can be appointed to act either together or separately.
A Power of Guardianship can be exercised only when the donor is mentally incapacitated and any decision by the Enduring Guardian should be as close as possible to the decision that the donor would have made.
Downloadable Forms (in PDF format)
Download and complete the relevant form to instruct us to prepare the necessary documentation