I continue to be amazed when I hear the sad and stressful stories from friends whose family or close friends die intestate or are critically ill but have no power of attorney in place. Just like manners and courtesy there is seemingly no socio-economic pattern here either. I wonder what the barriers are to putting in place the necessary paperwork? Whilst the title of this post may seem trivial, it appears that some folks think that writing a will is a sign that they are about to die. Now that is a sequence of logic that fails me. I understand the process can be complex, longwinded and really annoying, BUT it is essential.
Estate planning can be challenging
There are emotional reasons we put off this important task and yes it can be challenging. Rowan and I have had many soul searching conversations to deal with our relatively recent relationship where there is a child and a grandchild on one side of the ledger and none on the other side. By comparison with many, for example blended families, our situation is easy peasy! However, I can’t say that all of our conversations have been easy and we have needed to reassess our plans and recast documents over time as our circumstances have changed. Each time we revisit those challenging conversations and, yes, we all know that talking about money can be difficult. My response to that is, difficult yes, but absolutely necessary.
Then there can be the thorny issue of beneficiaries, particularly where there are no ‘natural’ beneficiaries such as a spouse or children. Of course, in some families there are the beneficiaries’ relationship breakdowns to deal with as well.
We highly recommend your getting excellent legal advice if your situation is other than straightforward. If you think there is likely to be a challenge to your will, ask your legal advisor how to minimise that likelihood. There really is no point writing a will if it is structured in such a way that the likelihood of a successful challenge is high. Venting your spleen towards a ‘natural’ beneficiary through a will may have unintended and heartbreaking consequences for others dealing with your affairs. There are no guarantees, but there are better and worse ways and a solicitor will be able to assist you with that. Remember too, as a solicitor will advise you starkly, but accurately, “you cannot speak from the grave!”
Choose your executor/s carefully too and brief them on your decisions, particularly if any of those are likely to be controversial.
Also, ask your solicitor about gifts such as jewellery and other family heirlooms. Should they be included within the will or in a separate gift list?
Do you have a power of attorney in place?
Once you have your will finalised there are other documents to consider; first and foremost powers of attorney. What happens if you are mentally or physically incapacitated and cannot attend to your financial affairs? What happens if a critical decision needs to be made about your health care and you are not competent to make that decision? Having your powers of attorney in place will allow a trusted person to act in your stead in those situations.
What about an advanced care directive?
A living will or advanced care directive can be used to document your wishes with regard to being critically ill and may smooth the path for the holder of your medical power of attorney. However, be aware that these may only apply within certain Australian states and there is some conjecture as to their legal application. Decide for yourself how you wish to proceed, but if you don’t document your wishes then you have less chance of them being met.
The following links may be useful and we recommend you also consult with your medical practitioner and legal adviser to ensure you use the correct and most up to date paperwork. We say that as there appears to be change in the wind regarding Advance Care Directives in Australia
General information on Advanced Care Planning with links out to information relevant to each Australian state and territory http://advancecareplanning.org.au/advance-care-planning/
Interesting discussion of tattoos as part of Do Not Resuscitate instructions https://emergencylaw.wordpress.com/2018/01/30/more-on-dnr-tattoos/
For Australian Capital Territory
https://www.advancecareplanning.org.au/resources/advance-care-planning-for-your-state-territory/act
For New South Wales http://www.health.nsw.gov.au/patients/acp/pages/default.aspx
For Northern Territory http://www.nt.gov.au/justice/pubtrust/app/index.shtml
For Queensland http://apps.health.qld.gov.au/acp/HOME.aspx
For South Australia http://www.advancecaredirectives.sa.gov.au/
For Tasmania http://www.dhhs.tas.gov.au/palliativecare/advance_care_planning_for_healthy_dying
For Victoria http://advancecareplanning.org.au/resources/victoria
For Western Australia http://www.health.wa.gov.au/advancecareplanning/home/
If you are managing the affairs of a recently deceased person, you may find it useful to utilise the Australian Death Notification Service to advise providers such as banks.
Disclaimer: We are not legal advisers and the information above is general in nature and based on our personal experience. It should not be relied on in making your own estate planning decisions.
Do you have your affairs adequately managed? When was the last time you reviewed these documents? Does it make you anxious just thinking about wills and the like? What would make it easier for you to address any outstanding documents?
