I often hear people say, “Oh! I don’t like to think about
that.” Unfortunately, if you do not make a will, should something happen to
you, the results can be messy. Car accidents occur regularly these days so you don’t need to be old to make a will.
A person who dies without a will is said, to be intestate,
and the estate passes to the next of kin according to a statutory order. This
also occurs when the deceased leaves a will that distributes only part of the estate, or where a will that has been made is
ineffective. I watched in the palliative care section as relatives filled out
wills for sick people which were unlikely to stand up in Court.
It used to be, if you are married, if you did not leave a
will your estate still passed to your wife as next of
kin. Now at the very least it will be divided between your wife and your
children, even if they are very young.
New intestacy laws however have introduced the concept of
“multiple spouses” to increase a provision for de
facto relationships. The new laws also cover same-sex partnerships; situations
where the deceased may have been involved with more than one person; and
cultural or religious groups that allow more than one wife. Since March 2009
the Commonwealth Family Law’s Act has effectively
given de facto, same-sex couples and partners in affairs the same rights as
married couples in terms of maintenance and division of assets. It may also
include persons in a “close personal relationship,” e.g., a friend who has cared for an elderly person.
This means that the potential number of people who can
bring a claim against your estate is becoming wider and wider.
It is imperative to have a will. To ensure it is legal,
spend the money and have it written up by a
How does a Power of Attorney work and do I need to arrange
Herald Sun, November 26th, 2016.
There are four types of powers of attorney but they all
basically work in the same way, they allow someone to act on your behalf. A
power of attorney is a legal document authorising
someone to make financial, personal, legal or medical decisions for you. You
are giving them the “power” to be your “attorney” which means your
Everyone over the age of 18 should have a power of attorney in place because it will avoid months of legal
wrangling to get access to financial assets or personal records if they are not
capable, according to the Office of Public Advocate.
Medical powers of attorney allow your chosen person to
authorise treatment if you are unconscious or too
unwell to make decisions.
All powers of attorney must be made when you are legally
capable of making the decision. This usually means before any major event or
accident has taken place.
In Victoria there are four types
of powers of attorney and each is used for slightly different purposes.
General Non-Enduring Power of Attorney
This is used when you want to authorise someone to act on
your behalf temporarily or for a specific purpose. You can state the time
period or the specific purpose in the document.
Examples include someone acting for you to sell or buy property, operate your
bank account for a set time frame, run your business or investments or
generally act on your behalf temporarily. They are often used when someone is overseas, in hospital or just out of action.
Enduring Financial-Personal Power of Attorney
This gives someone the power to act on your behalf forever
or until the power of attorney is revoked. With this document, the person has
financial power as well as the ability to make
personal decisions such as lifestyle issues on your behalf.
You can limit these powers by stating under what
circumstances the person can make any decisions. You can also appoint one
person to make financial decisions and one person to
make personal decisions, as well as having a back-up person.
If you don’t have a power of attorney in place, the court
will appoint an administrator or public trustee.
Enduring Medical Power of Attorney
This document appoints someone to make decisions about
medical treatment on your behalf when you are not capable. The document must be
in place before you become mentally or physically incapable. You can only
appoint one person to this role but you can also
choose a back-up.
Your medical attorney cannot refuse medical treatment for
you, except in very limited situations. In some cases your medical attorney may
also still have to apply to the Victorian Civil and Administrative Tribunal for
If you don’t have a medical power of attorney in place,
there is a hierarchy of people that are first options to make these decisions.
A spouse or next of kin is about fifth.
Supportive Power of Attorney
Even if you are available and have the capacity to make your own decisions you can appoint someone as a
supportive attorney. Their powers are limited to “assisting” you to make your
own financial, medical or personal decisions. But it includes the authority to
communicate with organisations, gather information
and get access to documents and records on your behalf. A supportive attorney
cannot assist in real estate transactions or any financial transaction
involving more than $10,000.
How to end a Power of Attorney
A power of attorney can be cancelled by signing a document to revoke it, as long as you still have
the capacity to make that decision. You can also revoke a medical power of
attorney by putting in place a new one, with a later date.
A power of attorney can also be challenged by anyone who
believes the person appointed is not acting in your
best interest. This application is made through the courts.
power of attorney often simply sit filed away for years. In Frank’s Mother’s
case, the power of attorney wasn’t used for 35 years.
Making a will and updating it from time to time ensures your family is
protected. A power of attorney only comes into use if you are unable to act for