THE IMPORTANCE OF HAVING A VALID WILL and an ENDURING GUARDIAN and FINANCIAL MANAGEMENT (an ENDURING POWER OF ATTORNEY)

As we age (especially) we need to arrange our affairs so that our own wishes are clearly made known to our loved ones and close friends if we lose mental capacity while still living, as well as on our deaths.

Let’s take Wills first (although they should really be last!)

Most of us know we should have a Will when we die. In it YOU appoint a trusted family member or friend (known as your Executor) who is to wind up your estate. Most importantly it spells out YOUR wishes as to what you want done with your things when you die. This includes funeral arrangements, payment of any debts, who takes your pet, what furniture and personal effects you want to give to particular people (optional), how you want the rest of your estate to be divided up and to whom, as well as the legalese giving whatever powers to your executor.

There are certain legal requirements for your Will to be valid, including that your signing of your Will needs to be personally witnessed by two independent people both present at the same time to certify that it was you who signed it.

If you don’t have a Will, your estate can be divided up by the State and can be given to family members you would not have given it to.

By having a Will, YOU HAVE CONTROLLED THE PROCESS AND EXPRESSED YOUR WISHES.

Enduring Guardianship and Powers of Attorney

These two documents are less well known by most people. They appoint trusted family members, friends or professionals to make decisions that you would normally have made IF YOU HAD THE MENTAL CAPACITY TO MAKE THEM. 

So, they apply particularly if you lose mental capacity while you are still living, AND YOU CANNOT REVOKE THEM ONCE YOU LOSE CAPACITY.  However, a court can amend or cancel such appointments if someone makes an application based on them no longer being in your best interests.

There are legal requirements regarding how these documents are to be prepared and signed. Importantly, they can be witnessed only by a practising lawyer or court Registrar, who has explained the effect of the documents to you before you signed them and is satisfied that you understand their effect. Additionally, the people you have appointed have to accept their appointment with similar certification by such a witness. 

These are important appointments by you, as they might determine where you live, what services are provided to you, what healthcare you receive, and what your money can be spent on (always for your benefit) while you are still living.. An Enduring Attorney is legally bound to keep your money separate from their own, and to keep reasonable records of your income and their expenditure for your benefit.

ELDER ABUSE

Unfortunately, there are family members and others who take advantage of elderly parents.

Some adult children pressure parents for an early inheritance. This is not fair, as it is your money, not theirs. And you are likely to need it if you have to go into care.

Before you give, lend or contribute to the building of a house that will accommodate you with any other family members, a granny flat or an extension to your children’s house, get legal advice. This may sound a bit harsh when dealing with your own children, but you should at least discuss with them what is to happen when they tell you to move out, or if they separate or divorce each other, how you get your money back? IT IS A LOT EASIER TO HAVE A LEGAL AGREEMENT IN PLACE BEFORE YOU ADVANCE THEM ANY MONEY THAN TO HAVE TO GO TO COURT TO DETERMINE WHAT RIGHTS YOU MIGHT HAVE (WITH ALL THE FEELINGS OF GUILT –“I should not have to do this”).

David Thorley

David Thorley Veterans’ Solicitor

M: 0408 116 758