Some questions...

  • If you died tomorrow, how would your family survive, and would there be any surprises in your Will?
  • If you unexpectedly lost your mental capacity through accident or illness, who would be legally authorised to make legal, financial and health decisions on your behalf?
  • Have you discussed the likelihood of you or your spouse remarrying after the first passes away?
  • How well do your children (and their partners) get along?
  • How stable are your dependants (in terms of ever facing bankruptcy, crime, mental health, addictions)?
  • Do your children have Wills and Powers of Attorney?
  • Are you and your children, and your spouse adequately insured?
  • If you have a blended family, how do you ensure the surviving spouse honours your agreement about the final distribution of assets to both sets of children when the survivor dies?

 

Dr Brett Davies, Lawyer

Dr Brett Davies, Lawyer

Don't leave it to chance.

It may be tempting to take up a company's offer of a "free will", but as you might expect, your estate will ultimately pay the price as these documents often automatically appoint an executor or trustee who may later charge a fee of 1% to 4%. Read this article on our blog.

Of course, Estate Planning is not just about having a Will. It also involves the review, management and control of your personal, family and business affairs while you are alive, and when you pass away, so it's worth seeking qualified, expert advice if you are in any doubt.

 

The right people by your side.

We've taken the hard work out of finding the right legal professionals, so you can feel confident that you're getting advice from people we know and trust. If you need a second opinion we would be glad to make an introduction.

 

Enduring Power of Attorney?

Put very simply, an Enduring Power of Attorney is an 'economic’ document - it doesn’t deal with your health, medical treatment or lifestyle. 

An EPA can

- Make financial decisions on your behalf,

- Transact on your bank account,

- See assets including property,

- Sign your legal documents.

An EPA cannot

- Vote in any elections,

- Make a Will,

- Sign another POA,

- Act as a Trustee,

- Control your body (to do this you need a Medical Power of Attorney).

 

Medical Power Of Attorney?

Medical Powers of Attorney, often referred to as 'Enduring Guardianship' makes decisions about…

- Where you live (whether permanently or temporary),

- Who you live with,

- Consent to medical & dental treatment’,

- End of life medical decisions.

 

Advance Care Directive (ACD)?

An Advance Care Directive sets out your specific wishes with regard to medical treatment should you suffer an incurable illness and become unable to communicate your wishes for such treatment. It does not appoint anyone to make your decisions (although in some states and territories, such as the Northern Territory, you must appoint an Enduring Attorney in an ACD).

Many people have an ACD in place as they want to 'die with dignity.' It's a very personal document and choice and sets out exactly how you want to be treated at the end of your life. 

 

What is the Difference?

A Power of Attorney appoints someone else to make decisions on your behalf, whereas an ACD sets out your wishes directly to your medical treatment providers should you be unable to communicate those wishes for medical treatment are.

In some states and territories you must appoint an Enduring Attorney in an Advance Care Directive. 

If you are incapacitated in the future and your medical treatment providers have a choice between a Power of Attorney document and an Advance Care Directive, then any wishes set out in the ACD will take precedence over any decisions made by an Attorney under an Enduring Power of Attorney.  This is because an ACD is your document that specifically sets out your wishes and what treatment you would like to receive at this time. You have made these decisions ahead of time and have let your medical providers know. If your medical providers have reason to believe that you have changed your mind about the treatment since the ACD was made, they have the power to override the ACD. 

If you are over 18 years of age and have capacity, you should ensure that you have both an Enduring Power of Attorney and ACD in place. Although it's not enjoyable to think about times in the future such as these, it's important to let your loved ones and others that will be responsible for your care know how you would like to be treated at this time. It's also important that you have appointed someone that you trust to manage your other important matters, such as your financial and legal affairs, under an Enduring Power of Attorney. Both documents are equally important in planning for your future.