1. What is a Will?
A legal document that deals with the disposal of ones property following their death. It may also deal with the guardianship of infant children.
2. Why make a Will?
It is the only way to be certain that a lifetimes work spent building up assets is passed onto your nominated beneficiaries. It also ensures an early and cost efficient administration and distribution of your estate.
3. What happens if I die without a Will?
A person who dies without a Will is said to have died intestate. An intestate’s estate is distributed in accordance with legislation. Your assets will then be distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets, which may not accord with your general wishes. If you die intestate and have no surviving relatives closer than cousins, the State Government will receive your estate.
4. What is a Power of Attorney?
A legal document enabling another person to make decisions on your behalf with respect to property and finances. The power operates from the time specified in the power and is subject to restrictions specified in the document. This legal document enables an Attorney to do what you would normally lawfully do yourself. For example your Attorney can do the following:
- Do your banking.
- Decide how to invest income.
- Sign legal documents.
- Collect or pay rent.
- Transfer assets.
5. What is a “Living Will”?
In some jurisdictions there is provision for an attorney pursuant to an enduring power of attorney to make decisions in relation to medical treatment where the principal is mentally incapable of making such decisions. There is no provision in NSW for this role to be taken on by an attorney. This position in NSW is covered in a document called an “Enduring Guardianship” or an “Advanced Care Directive”.
6. What is an Enduring Guardianship?
This is a legal document that enables another person to make personal and lifestyle decisions on your behalf. The Enduring Guardianship only operates during times of incapacity when you are in need of a guardian by reason of disability which renders you totally or partially incapable of managing your person.
An enduring guardian may exercise the following functions;
- To decide where you live
- To decide what health care you receive
- To decide what other kinds of personal service you receive
- To consent to the carrying out of medical or dental treatment on you
- To decide whether medical treatment should be provided to you where you are in a terminal phase of an incurable or irreversible illness, in a coma, in a persistent vegetative state or so seriously ill that you are unlikely to recover without the use of life sustaining measures (you can decide in these circumstances that you do not wish to have medical treatment)
7. What happens to the Power of Attorney or Enduring Guardianship when I die?
It will have no effect.
8. Do I have to register the Power of Attorney or Enduring Guardianship?
No, however when transferring property, the Power of Attorney must be registered.
9. Can I cancel a Power of Attorney or Enduring Guardianship?
Yes while you have mental capacity to do so.
10. What happens if I do not have a Power of Attorney or Enduring Guardianship and I am incompetent (ie, suffering from dementia or in a coma)?
Decisions should be made by a “responsible person” in consultation with the appropriate service provider. If a responsible person is unable or unwilling to act then an application will have to be made to the Guardianship Tribunal. This can be costly and time consuming.