We hear a lot about the alarming number of people without a valid Will. The NSW Trustee and Guardian reports that studies show that at least 45% of Australians are without one.
Having a valid and current Will is crucial for you to ensure your assets are distributed according to your wishes when you die.
However, there are two other very important legal documents you should consider in fully planning for your future so that you are protected while you are alive.
Documents appointing one or more trusted people to act as your Enduring Power of Attorney and Enduring Guardian are essential so that someone you trust can look after your financial interests and wellbeing if you are in an accident or become unwell and lose mental capacity. Power of Attorney and Guardianship documents also serve a useful purpose if, for instance, you are planning an overseas trip or are of an age where you require someone else to look after your affairs.
In some ways, these two documents are even more important than your Will especially if your main assets are your home or other real property which you own as a joint tenant with your spouse and if you and your spouse have shared bank accounts. Property and intestacy laws will generally provide for those assets to go to your spouse on your death. But in the awful (and unlikely) event that you or, worse still, you and your spouse are in an accident and incapacitated, who will look after your affairs?
You can only make these vital appointments when you have decision making ability. All too often, the loved ones of an incapacitated person realise the importance of these documents when it is too late.
Protect your Finances
An Enduring Power of Attorney document will appoint one or more people to make decisions on your behalf with respect to your legal, financial and property matters. Their responsibilities and powers are limited to those things and do not extend to matters relevant to your health and wellbeing or to making decisions relevant to your Will.
You can elect whether the appointment has effect immediately on your attorney accepting it, when your attorney considers you require assistance with your affairs or when a medical practitioner certifies that you require that assistance.
You can appoint one or more attorneys, or one attorney and a substitute(s) in the event your chosen attorney is unable to undertake the role. It is recommended that you appoint at least one substitute attorney. For instance, if you appoint your spouse as your attorney you may need a substitute in the event you and your spouse are both seriously injured together.
Protect your Wellbeing
An Enduring Guardianship document will appoint one or more people to make legal decisions for you if you aren’t able to make those decisions for yourself which are relevant to your health and lifestyle, such as what medical treatment you receive and where you live in the event you are no longer able to live at home.
As with an Enduring Attorney appointment, you should appoint at least one Enduring Guardian and one substitute.
Guardianship does not allow your appointed person to manage your finances, make any decisions about marriage for you, make any decisions about what you include in your Will or contest any decisions you make about your medical treatment or care while-ever you have legal capacity to make those decisions yourself.
Plan for your Future
Having an Enduring Attorney and Enduring Guardian legally appointed to take care of you is an excellent way to plan for your future and provide a secure platform for your loved ones to look after you if need be while you are still alive.
A Will on the other hand, is crucial in planning for the future of your loved ones when you leave them behind.
If you have any queries in relation to this article or to act now and have your Will, Enduring Power of Attorney and Enduring Guardianship documents prepared, please contact KS Law. We offer a fixed price package for all 3 documents.
The content of this article is intended to provide a general guide to the subject matter. Specialist individual advice should be sought about your specific circumstances.