January is a time for reflection and setting intentions for the year ahead. As you plan for a fresh start, consider these four essential estate planning tips to secure your future, writes Wills and Estates Partner, Angela Harry.
It’s that time of year again when many of us commit to New Year’s resolutions, whether it’s starting a new diet, embracing an exercise regime, or putting a plan in place to save for your next holiday. While these goals focus on improving our health and wellbeing, planning for your future health needs and protecting your hard-earned assets is just as crucial.
Estate planning, much like insurance, is essential life administration – providing peace of mind and safeguarding you and your assets against the unexpected.
Just as you would renew and revise your insurance policies each year, you should do the same with your estate plan.
Few people like to think what should happen in the event of incapacity or death. However, at Attwood Marshall Lawyers we advise our clients that if they can just complete four crucial estate planning documents, they can rest assured their estate will be protected and their wishes respected.
These documents are:
- A Will
- An Enduring Power of Attorney (for those in QLD) or Enduring Power of Attorney and Appointment of Enduring Guardian (for those in NSW)
- A Binding Death Benefit Nomination for your superannuation
- An Advance Health Directive
Will
According to the Australian Bureau of Statistics, one Australian dies every 3 minutes, and it’s estimated only 50 per cent of Australians have an up-to-date and legally binding Will. Having a legally binding Will is vital to document and ensure what you decide to do with your assets in the event of your death, actually happens.
A Will can also document your wishes with regard to important decisions, including appointing an executor to carry out your wishes and manage your estate, and a guardian for dependent children, as well as considerations for their inheritance.
If you don’t have a Will, decisions about your assets and dependents will be determined by the rules of intestacy which slightly vary between States and Territories in Australia. When someone dies intestate, it can increase the costs of administration, the time it will take for the estate to be administrated, and in some cases, can result in the estate ending up with unintended beneficiaries (like the Government!).
Take control of your family’s future by creating a Will drafted by an experienced estate planning lawyer who can craft a document that protects your interests and ensures your wishes are carried out.
Read more about making a Will here and how to find an existing Will here.
Enduring Power of Attorney (EPOA) and Appointment of Enduring Guardian
Unlike a Will, this document is an essential tool that applies while you are still alive. If you suddenly suffer an injury or illness that impacts your decision-making capacity and you cannot make decisions for yourself, an EPOA allows someone of your choosing who you trust, to handle your financial and personal affairs.
In Queensland and Victoria, it is a single document that allows you to appoint an attorney, or attorneys, to make financial, personal and health-related decisions.
New South Wales is slightly different and requires two separate documents (Power of Attorney and Appointment of Enduring Guardian) to deal with financial and health-related decisions.
There is a common misconception that our loved ones, or the executor of your Will, can automatically step in and make these decisions should the unexpected leave you incapacitated.
However, without an EPOA or Appointment of Enduring Guardian, your family would have to make an application to the State Administrative Tribunal, in Queensland that would be the Queensland Civil and Administrative Tribunal (QCAT) and in New South Wales it is NSW Civil and Administrative Tribunal (NCAT). This process takes time and can be very costly.
More alarmingly, by not having an EPOA in place, authority over you could be passed to The Public Trustee to control your affairs and make decisions on your behalf. Unfortunately, it is well documented that the Public Trustee has repeatedly failed the very vulnerable people who rely on them for care and support.
The Public Trustee has been repeatedly investigated by journalists and has been exposed to have cut vulnerable people off from their finances, left them living on the streets, unable to support themselves, and having their assets sold with those funds then being lost to excessive fees charged by The Public Trustee themselves.
Read more about Enduring Powers of Attorney and learn about the risk of having the Public Trustee make decisions for you here.
Binding Death Benefit Nomination – Superannuation
Many people often overlook their superannuation when it comes to estate planning. However, superannuation benefits are non-estate assets, which means they cannot simply be dealt with by listing this asset in your Will.
A binding death benefit nomination is a document that lets you specify who should receive your superannuation benefits after your passing. Without this nomination, the superannuation fund’s trustee has discretionary power to choose who should receive these funds, potentially resulting in your assets not going to whom you would have wanted to.
Ensure your wishes can be fulfilled by completing this document, signed and executed similarly to a Will. If you fail to execute the document correctly, it will be invalid.
Read more about superannuation and succession.
Advance Health Directive
An Advance Health Directive is a document that specifies what healthcare treatments or actions you would like to have or refuse, should you be in a position where you are so seriously ill or injured and unable to make or communicate your decisions about your care or treatment at that time.
For someone who may have an existing illness or be in a later stage of their life, seeking information from their treating doctors as to what they can expect from their illness is a good place to start when it comes to discussions about advance care planning and making important decisions about end of life.
It can be particularly important to have an advance health directive if you have a chronic medical condition or if you are about to be admitted to the hospital with a medical condition that is likely to affect your decision-making ability.
Advance Health Directive documents are readily available on the internet and we advise you to read them to help you understand the types of questions you should consider.
Do you want a blood transfusion? Do you want to be resuscitated? What kind of treatment would you want to receive in certain situations?
The documents available go into quite a lot of detail to help you consider each of the different types of scenarios.
However, we strongly recommend that you get this document finalised by a legal professional to ensure the document is prepared properly and leaves no room for misinterpretation or disputes to arise.
Read more about Advance Health Directives here.
Anyone over the age of 18 years with decision-making capacity, can create a Will, an Enduring Power of Attorney, an Advance Health Directive and a binding death benefit nomination to protect their superannuation.
These four documents are the most important tools that everyone should have in their estate planning “life tool kit”.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
Attwood Marshall Lawyers are proud to have one of the largest and most experienced Wills and Estates departments, with specialist lawyers who practice exclusively in estate planning, estate litigation and estate administration.
Our lawyers are available for appointments at any of our conveniently located offices at Southport, Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney and Melbourne.
We can help you create your estate plan quickly and effortlessly.
Book an appointment online now by clicking here, or contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au to discuss your specific needs and take advantage of our free 30-minute Will review.
