Friday 29th April 2022 from 9am

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LIVE ON RADIO 4CRB:
Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

The recent explosion in COVID cases and spike in related deaths serve as a stark reminder to get your legal affairs in order

News

Australia has had more than 102,5368 active Covid cases in the last seven days (based on data for 20/01/2022), and have recorded 374 deaths in the past 7 days (reported on 20/01/2022), as Omicron continues to reach its peak. Attwood Marshall Lawyers Wills and Estates Senior Associate and accredited Aged Care professional, Debbie Sage discusses why the spike of Covid cases should prompt everyone to get their affairs in order so that you can have peace of mind during these challenging times.  She also discusses what steps you need to take if you devastatingly lose a loved one to COVID.

Background

Australia recently reported its most extensive pandemic caseload with a runaway Omicron outbreak driving hospitalisation rates higher. The surge put a severe strain on supply chains forcing authorities to ease isolation rules for more workers.

Queensland had reported six COVID-19 deaths just days before the state threw open its border to interstate travellers. Authorities removed all domestic border controls from 1am on Saturday 15th January 2022, as they shifted focus to managing access to specific venues for unvaccinated people. Premier Annastacia Palaszczuk recently announced that fully vaccinated international travellers will be allowed into Queensland from 1am on Saturday, January 22 without having to quarantine.  This could lead to further increases in deaths, case numbers and hospitalisations.  As of 20th January 2022, the number of COVID related deaths recorded in QLD has grown to 72 and 2,896 across the nation. These figures are expected to continue to increase in the foreseeable future and, significantly, the percentage of people dying from COVID who are double vaccinated is very high.

A record-breaking number of COVID-related deaths have been reported in New South Wales as Victoria also battles its highest number of hospitalisations since the start of the pandemic. Over 100 COVID-19 deaths have been reported in NSW in the past five days, including 36 on Tuesday 18th January 2022. NSW Premier Dominic Perrottet has said the state must push through and get on with life as lockdown is “the only alternative”.

He conceded the health system was under pressure but defended the current path as a “hard but right” road.

NSW hospitals face unprecedented stress, with a record 2,850 patients being treated in more than 25 facilities.

Hospitalisations have risen 30 per cent in a week, while intensive care numbers have nearly doubled in a fortnight. More than half of the 209 COVID patients in ICU are on ventilators.

A state-wide code brown has been called at Victorian hospitals after a record number of COVID-19 admissions and widespread furloughing of staff.

Health Minister James Merlino said the healthcare system was buckling under the Omicron wave. Forecasting hospitalisations would peak in coming weeks with more than 2,500 coronavirus patients in hospital and up to 100 new admissions daily.

In previous weeks, the surge in cases has placed increasing pressure on health resources and resulted in critical staffing shortages in some hospitals and aged care settings.

Australia, once considered a world-class example of keeping Covid-19 at bay, is now one of the most affected countries globally.

Almost two years of sporadic lockdowns and careful restrictions managed to keep Australia’s daily Covid-19 cases and deaths relatively low in comparison to similar countries in the world. But the emergence of Omicron in December has significantly altered everything.

The latest data from Johns Hopkins University shows that Australia has a seven-day rolling average of 87,815 cases per day.

It is one thing to know that how we see COVID is changing. However, Omicron is a milder variant for most people, and the theory of mass vaccinations preventing the considerable rate of hospitalisation and deaths that occurred overseas last year is being tested.

At this point, almost 1,000 aged care residents have died from COVID in Australia during the pandemic and almost 10,000 residents and workers in aged care have been infected with COVID.

According to families and staff in the aged care sector, there is often a shortage of rapid antigen tests and PPE, an ad hoc policy on lockdowns, and an absolute dearth of carers.

While many of us have been concerned about ruined holidays, hours waiting in testing queues, and days spent isolating at home or feeling unwell, what is happening to our elderly in Australia right now is flying under the radar.  Most tragically, this crisis was highly predictable.

Why it is imperative that everyone have their affairs in order

Even before the pandemic hit our shores, the message about the importance of estate planning was lost on many. Estate planning often gets dismissed as something only the wealthy need, or the elderly. That is simply not the case. And although we received an influx of enquiries from people wanting their Wills drafted at the start of the pandemic, now more than ever it is important for everyone to know what documents they should have in place and why.    Our firm has handled a higher than average number of estates in the last 2 years where the deceased has died without a Will and it was very upsetting for families to go through the process, especially cases involving blended families)

Making your Will

A Will is an essential legal document conveying your final wishes. It lays out how you would like your estate to be distributed in the event of your death and who you would like to appoint as your executor/s to carry out your wishes. It may also include directions related to finances, guardianship for your minor children, and funeral wishes.

  1. Steps involved in making a Will: Initially you should arrange a consultation with an experienced Wills & Estates lawyer – either via phone, video conference or in-person – whatever is most suitable for you.
  2. During the consultation, each step of the process will be explained to you by your lawyer. Some Wills can be prepared quickly, however, this does depend on the complexity of the estate and the family situation of the individual.
  3. It is recommended to gather as much of the necessary information required to draft your Will ahead of your consultation. At Attwood Marshall Lawyers, we provide all clients with a simple online questionnaire they can complete at their own pace prior to their appointment which will give their lawyer all the information required to get the process started.


Information required to draft your Will

Whilst you may not know some of the answers straight away, these are some of the questions that would be discussed during your consultation:

  • Who would you like to appoint as your Executor/s?
  • What are your assets and liabilities and how are they owned?
  • How do you want your assets distributed?
  • How do you want any assets that may not form part of your estate, such as superannuation, to be dealt with?
  • Who do you wish to appoint as Guardian/s of any children under 18?
  • Would you like to include any funeral or burial wishes in your Will?
  • Do you have any other directions you wish to document?

Once all of the necessary information has been gathered and discussed and a final decision has been made, preparation of your Will can commence.

An estate planning lawyer will ensure that all legal requirements are complied with and may recommend strategies to try to prevent your Will from being contested in the future. 

Without a Will, your estate will be administered without taking your wishes being considered. If you die without a Will, an administrator will need to be appointed and your estate will be distributed in accordance with a statutory formula prescribed by the legislation of the State or Territory where the asset is held. Often, the proposed Administrator will need to obtain a Grant of Letters of Administration from the Supreme Court to confirm their standing and authority to represent and distribute your estate.

If no one is able or willing to act as administrator, the Public Trustee may assume this role. The rules of intestacy are in place to establish how your estate is distributed in the absence of a Will which follows a set formula for distributing assets to persons considered eligible under the law.

Updating your Will

Your circumstances can change frequently. If you have a Will, it is essential to review and update it regularly.  Marriage, separation, divorce, the birth of children or grandchildren, the death of a beneficiary or executor, or a significant alteration to your financial situation or assets are all reasons to review and/or update your Will.

Enduring Power of Attorney

An Enduring Power of Attorney (EPOA) is a legal document that appoints one or more people to manage your affairs if you are not capable of doing so.  Loss of mental capacity often occurs due to injury or illness and can affect anyone, often with no warning. That is why this document can often be considered more important than a Will as it comes into play whilst you are still alive but when you are deemed to have lost the ability to make decisions for yourself.

Being proactive in appointing an EPOA may prevent you and your loved ones unnecessary anguish and financial distress should you lose mental capacity in the future. It is essential to choose someone you trust implicitly and who understands your wishes in relation to your health care choices, living arrangements, financial matters, and personal health matters. Your chosen EPOA must be at least 18 years of age and should not be someone who receives a payment to take care of you.

Advanced Health Directive

An Advanced Health Directive is a formal way to give instructions about your future health care. It is sometimes referred to as a living Will. It will only take effect if you cannot make decisions for yourself or communicate your proclivities.

In your Advanced Health Directive, you can:

  • state what medical treatment or health care you desire if you are no longer capable of making decisions for yourself. It can be general or specific (e.g. that you wish to decline a particular medical treatment)
  • appoint an EPOA to make decisions on your behalf regarding personal matters
  • include information to inform health professionals regarding health conditions, allergies, and religious, spiritual, or cultural beliefs that could impact your care.

Medical treatment applies to treatment for both physical and mental conditions. If you only wish to document your preferences for mental health treatment, you can complete an Advanced Health Directive for Mental Health.

What to do if you lose someone from COVID – estate administration will not wait

Due to Covid-19 sensitivities, the grief of families’ losing loved ones recently have heightened. The loss of a loved one can be extremely overwhelming.  Particularly if you are also the one responsible for their financial affairs, actioning their Will and organising their funeral. There is also the grim task of dealing with the hospital or nursing home and arranging for the body of your lost loved one to be collected by a funeral home.

As Omicron runs rampant throughout our society, it is understandable that executors of estates would need more time to deal with matters. However, the administration of deceased estates and dealing with the funeral home, providing information for the death certificate, and arranging the funeral cannot be put on hold waiting for the COVID-19 crisis to ease.

If you are an administrator or executor, there are real risks of not meeting legal deadlines and leaving the estate more vulnerable to being challenged by a family member or other interested party.

Following the funeral, the role of an executor includes:

  • Locating the original Will.
  • Dealing with general tasks, for example, redirecting mail, cancelling services, or arranging for pets to be cared for.
  • Administering the estate, which may involve obtaining a Grant of Probate if required.
  • Collecting the Estate assets, looking after them for the beneficiaries’ benefit, and notifying the beneficiaries.
  • Ascertaining the deceased’s debts or liabilities if they have them and if so, arranging payment from the estate’s assets.
  • Recording, accounting, distributing, and paying the estate’s assets and liabilities.
  • Seeking advice from an Accountant regarding any potential tax liability or whether any personal or estate tax returns are required.
  • Once all debts are paid, distributing the remaining assets in accordance with the terms of the Will.

The responsibility of an executor can be overwhelming and may prove complex for those with little legal or business knowledge. Administering an estate generally takes at least 6 months and can be time-consuming, coupled with the fact you are grieving and managing your own affairs. It can be quite an onerous task.

If you are an executor or administrator of an estate, it is important to allow yourself time to grieve as well as taking the necessary time to make the right decisions for you, your family, your loved ones, and the deceased.  Remember that you do not have to do everything by yourself. By getting the support of an estate administration lawyer, you can have guidance throughout the process and ensure you are meeting your obligations.

Arranging payment of the funeral account

The funeral can generally be paid for from the estate. The bank can release funds from the estate to cover funeral costs while the account is frozen. This can be paid to the executor, estate administrator or person who organised and paid for the funeral. To have the funeral account paid, the executor/administrator will need to provide an invoice or receipt for the funeral service to the bank.

If you organise a funeral service directly after your loved one has passed, the funeral provider will generally require services to be paid upfront, which will likely be before the estate is released. This is because most providers require an upfront payment before the service. However, direct cremation is invoiced at the end of the service process, which means payment is not required until after the cremation has taken place.

Your loved one may have already pre-planned for their funeral. If this is the case, contact the funeral provider to engage their services if a prepaid funeral has been arranged. If the deceased had a Funeral Bond or Funeral Insurance, get in contact with the company to organise the release of funds for the cost of the funeral. If previous arrangements were not made, the executor or senior next of kin has the authority to make funeral arrangements.

Payment of existing liabilities and what to do with them

When someone dies their bank or financial institution will freeze withdrawals if they were the sole account holder.  This prevents further transactions and ensures the estate is protected pending the bank’s requirements to release the funds to the estate. Any joint bank accounts will continue to operate as usual with the surviving account holder able to access its funds. Accounts where both signatures were required will only require one signature upon the death of the other account holder provided you have given the bank a certified copy of the Death Certificate and signed any forms they may need to you sign. Every financial institution is different with its requirements so it is important to check with the bank to ensure you are giving them the information they require to assist you with this process.

Any credit card, personal loan debt or other unsecured liabilities must be paid before making a distribution to the beneficiaries. Secured liabilities (eg. mortgages and/or car loans etc) are treated differently and will depend on the terms of the Will as to how the debt may be paid.

Most banks and financial institutions will have specialist support teams in place to assist you when administering the estate of the deceased. You will need to complete some paperwork, such as filling out a deceased customer notification form, confirming your loved one’s details. This allows the bank to identify the accounts and products held in the deceased’s name. The bank will need to verify your authorisation prior to allowing access or releasing information about the deceased’s accounts.

The bank will need to sight a certified copy of the death certificate, the current Will and your identification to begin the process. In addition, depending on the estate’s value you may also require a grant of probate (if a valid Will is in place and the executor is prepared to act) or a grant of letters of administration (if there is no valid Will in place or no executor in the Will prepared or able to act).

Once the bank has everything they require, they will release the funds in accordance with your instructions – usually to a solicitor’s trust account or an estate bank account where the assets are called in pending distribution in accordance with the terms of the Will (or if there is no Will then in accordance with the laws of intestacy). A stop will also be applied to the accounts to end direct debits and recurring payments. Upon request, the bank can provide you with a list of regular payments on the account to help you arrange to stop future debits.

Attwood Marshall Lawyers – leading Wills and Estates Lawyers ready to help you

Attwood Marshall Lawyers is a leading estate administration and estate planning law firm with one of Australia’s largest and most experienced Wills and Estates teams. We can help ensure your loved one’s wishes are protected and preserved.

Having a proper estate plan in place makes it so much easier for loved ones after your passing. By having an up-to-date Will, your loved ones will know exactly what they need to do, can organise a funeral and the disposal of your body as you wish, and distribute your estate as you intended it to be.

If you have been appointed as an Executor, you should seek legal advice from an experienced lawyer who specialises in this area as soon as possible to get advice about the role, costs involved, and expectations on you to perform your duties. Many Executors make the error of using whatever law firm holds the Will. These firms often have little or no experience in Estate Litigation or Estate Administration and often fail to give proper advice to Executors. This could cost you and the estate a lot of money!

If you need advice on estate administration or estate planning, please call our friendly Wills and Estates team anytime on 1800 621 071. Alternatively, you can contact Wills and Estates Department Manager Donna Tolley directly on 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au or book online to make an appointment.

Read more:

Estate Planning 101 – what is ‘estate planning’? What you need to do to put a plan in place to protect your estate and your family

Dealing with death – Estate Administration and the immediate next steps you need to take

A Binding Death Benefit Nomination can determine how your self-managed superannuation funds are dealt with upon death

 

 

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Debbie Sage - Wills and Estates Senior Associate

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