Wills & Estate Planning

Ensure your Estate is protected 

Wills & Estate Planning

Estate Planning - An Overview

Effective Estate planning protects your assets and interests for future generations through certain tools that may include a Will, a testamentary trust, a power of attorney and an enduring guardianship.  Estate planning involves a process of analysis of your wishes, your assets and liabilities, your family dynamics, your financial and business structures and the operations of the current laws such as taxation and superannuation.  Your estate plan model will take shape following a consultation and advice provided by our team and will be translated into a number of documents which will give the best possible effect to your testamentary intentions.

Powers of Attorney

A Power of Attorney is a legal document that appoints and authorises a person nominated by you, to lawfully act on your behalf as though they were you in legal, property and financial matters.  A Power of Attorney is New South Wales does not give the attorney the authority to act on your behalf in relation to medical treatment.

A Power of Attorney may be enduring or general.

A General Power of Attorney may give the attorney power to act on your behalf for a limited period of time, for example if you are overseas or to act in relation to certain matters only.  The fundamental characteristic of a General Power of Attorney is that it becomes void in the event that you become mentally incapacitated.

An Enduring Power of Attorney may give the attorney the same power as above or more general powers, however it continues to operate if and after you become mentally incapacitated.  The appointment must be made by you before you lose mental capacity and cannot be made after.  A court or tribunal can make that appointment for you in such an event.  A Power of Attorney must be signed by the principal (the person giving the appointment) and in the event that the Power of Attorney is an enduring one, it must be accepted and signed by the attorney before it can operate.  The document must be explained to you by a solicitor and signed by them as having given you the necessary advice and certifying that you appeared to have capacity to understand the effect of the appointment.  Your attorney must be someone you trust and someone who is capable of making important decisions for you.

A Will

Why you should have one!

A Will is a document that is drafted during your lifetime that sets out your intentions as to how you want your assets to be divided upon your death. Whilst valid during your lifetime a Will only operates after your death. A Will must be legally valid and as such must be properly drafted and witnessed. It should be revised every five years or on re-marriage or a new relationship to ensure it is up to date. In the event that you die without a Will or a properly drafted Will, you are known to die "intestate". Your estate will be distributed but not in accordance with your intentions and wishes but in accordance with rules and a specific order prescribed by the applicable intestacy laws. These laws may change from time to time and will not take into consideration your particular circumstances including your financial and business structure, family dynamics, taxation issues and other relevant factors that can be considered in a Will.

What is an Enduring Guardian?

An Enduring Guardian is a person who is nominated by you in a prescribed form as someone who can make decisions on your behalf in relation to your health, lifestyle, medical and dental treatment in the event that you lose mental capacity and can no longer make those decisions for yourself.  The appointment only has effect whilst you are totally or partially incapacitated.

Who can be an Enduring Guardian?

Your Enduring Guardian must be over the age of 18 years and should be someone whom you trust.  An Enduring Guardian must not be:

  • a person in a professional or administrative capacity who is involved in providing you with medical services, accommodation or any other services to support you in your life;
  • a family member of such a person.

How do I appoint an Enduring Guardian?

The appointment must be done in the prescribed form in writing and must be:

  • signed by you;
  • signed by your Guardian;
  • witnessed by a solicitor or barrister.

The document does not need to be registered or lodged.

What is an Advance Care Directive (ACD)?

Your Guardian can be guided through conditions placed in the appointment document or in a separate document known as an Advance Care Directive (ACD).  This document sets out your wishes in relation to medical treatment for the purpose of prolonging your life in cases where you may be terminally and irreversibly ill or injured.  The ACD does not need to be in a prescribed form but needs to be clear and unambiguous.  The ACD does not need to be registered but must be signed and should be witnessed.