At Advocate Family Lawyers, we do not just prepare your Will, Power of Attorney and associated documents for you, we sit down to discuss your own personal situation and determine the best solution to make sure that you protect both your assets and your family in the appropriate manner in order to avoid conflict in the future.
- Preparing Wills
- Preparing Powers of Attorney
- Keeping safe custody of your Will and Powers of Attorney
- Referring you to a financial advisor, if required
What is a Will?
A Will is a legal document that lets you share instructions for what you want done with your estate after you die. Your estate includes your belongings, your assets and any other things you own.
In your will, you name the people that you want your belongings and assets to be given to. But you can also use your will to set out who you want looking after your children or pets.
Your will only takes effect when you die. It is unable to be used in cases where you are still alive, even if your injury or illness means you are unable to make your own.
What is a Power of Attorney?
A power of attorney is what allows you to appoint someone, a person or organisation, to make important decisions on your behalf during your lifetime. The person you choose to be your attorney can be a family member, a friend, or an organisation such as State Trustees.
There are a few types of powers of attorney. There is a general non-enduring power of attorney that appoints a person to act on your behalf for specific purposes, such as while you are overseas. This type of power of attorney will end once the specific purpose has been completed, or once it is revoked.
Another type is an enduring power of attorney. An enduring power of attorney authorises a person to make decisions about financial and/or personal matters for you during your lifetime. You can choose when it begins, however it will continue if you lose capacity. That is, when you can no longer make decisions on your own. It is designed to ensure that decisions are made in your best interests in case you can no longer do that for yourself.
Typically powers of attorney will end once you die, unless they have been revoked by you earlier. After you die, your will becomes the most important document.
What is the difference between a will and a power of attorney?
Once of the main differences between a will and power of attorney is when they take effect. A will is a legal document that sets out your wishes for what you would like to have happen to your estate when you die and takes effect after your death. A power of attorney is a legal document which authorises the person you nominate to act on your behalf and takes effect during your lifetime.
The executor (the person in charge of carrying out your will) has a specific and limited job description. The executor needs to make sure your property and assets are properly distributed. The person or organisation that you have appointed as your attorney will make all kinds of important decisions, but only while you are still alive.
Can the same person hold power of attorney and be the executor of your will?
Yes they can. The same person or organisation that you name as executor of your will can also be appointed as your attorney. It is common, because both roles hold responsibilities that you may want entrusted to a particular person or organisation. Naming someone as executor of your will does not automatically give them power of attorney though or vice versa. You still need to create two separate documents, a will and a power of attorney document, to make sure you are covered for both.
Do I need a Will?
Yes you do! This is especially so if you have assets. A person’s assets need not be substantial for it to make sense for them to make a will. Disputes over assets, even assets of little monetary value, are common. Such disputes can be costly to an estate if the courts become involved (as the costs may be borne by the estate that is the subject of the dispute) but perhaps more Importantly they lead to a break down in family dynamics.
It is important to have a valid Will in place to ensure that:
- Your assets, as a whole, are dealt with in accordance with your wishes.
- You can make specific gifts and legacies, by nominating the individuals who will receive your assets when you die. For example, you can nominate particular beneficiaries who you would like to receive particular items of jewellery or other property or sums of money.
- Your burial or cremation instructions are provided to your family.
- Your estate is administered by the person or persons who you nominate.
- Your estate is not dealt with in accordance with the laws of intestacy, which will apply if you die without a Will.
- The risk of family breakdown is minimised.
- You can appoint a guardian of any minor children (for example children under the age of 18 years) in the event of your death.
Medical Powers of Attorney
Appointing a medical treatment decision maker.
You have the right to make your own medical treatment decisions but in circumstances where you experience an injury or illness that means you are unable to make decisions, either temporarily or permanently then Victoria’s Medical Treatment Planning and Decisions Act 2016 specifies who has legal authority to make medical treatment decisions for you. This person is called your medical treatment decision maker.
You can appoint your medical treatment decision maker by choosing someone providing you have decision-making capacity to do so.
If you would like to confidentially discuss your circumstances, please contact Deanna for a free initial consultation by calling 03 8393 6569 or email deanna@advocatefamilylawyers.com.au
