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WILLS

A Will is a legal document that directs how your assets should be distributed and appoints guardians of any children. It appoints an executor to oversee this process. A properly drafted, up-to-date Will is the only way that you can be sure your assets will be dealt with as you wish.

If you pass away and do not leave a valid Will, your estate will be distributed in accordance with strict rules dictated by legislation which operate without any regard to what your personal preferences may have been. It can also add significant cost and delay to the administration of your estate.

Having a Will relieves your loved ones of this burden and enables you to provide for them in a tax effective manner. It ensures that your dependants are placed in the best possible position in the event of your death.

It is important to have a Will regardless of the value of your assets.

You should review your Will whenever your circumstances change (e.g. a change in marital status; when a child is born, becomes an adult or marries or divorces; when there is a substantial change in the value or nature of your assets or when a beneficiary or executor dies).

In some circumstances it may be appropriate to include a Testamentary Discretionary Trust (TDT) in your Will. A TDT is a trust that is written into your Will and provides your beneficiaries with asset protection, flexibility and tax effectiveness.

A TDT is highly desirable if you have a beneficiary who:

has a disability;
suffers from an addiction;
is poor at handling his/her finances;
practices in a profession which has a high risk of litigation;
is in a high tax bracket; or
has a history of bankruptcy.

By gifting your estate to these beneficiaries by way of a TDT, you can protect their inheritance from future loss.

Expert legal assistance is essential to ensure that your Will is valid and fits your particular circumstances.

ENDURING POWER OF ATTORNEY

An Enduring Power of Attorney is a document that provides for a time when you are unable to make decisions for yourself (eg. mental incapacity caused by an accident or old age). It is an agreement which gives another person power to make decisions on your behalf. “Enduring” simply means that the power continues even after you lose capacity to make decisions yourself.

You may give your attorney power to make decisions about:

Personal/health matters – includes decisions about where and with whom you live, day to day issues like diet and dress, and whether to consent, refuse to consent or withdraw consent to particular types of health care for you (such as an operation). This does not include decisions regarding terminating life-sustaining medical treatment.
Financial matters – includes all financial matters such as receiving income, paying bills, taxation and dealing with contractual issues, investment and financial planning, legal actions and property management.

If you don’t have any Enduring Power of Attorney, it can be difficult for your carers to make decisions and look after your general needs.

Also, difficulties can arise should there be family disagreement as to what is best for you. By appointing an attorney, you get to choose who will make these decisions. You can also talk to them about your wishes when the document is prepared so they know what to do should you lose capacity.