Wills – Power of Attorneys – Advanced Health Directives
Planning for your own future and your family’s future after you’re gone is a really important legal task.
If you take the time now to seek legal advice you can then make decisions for yourself regarding your ongoing needs.
Your Will
Having your will in place can save your family not only distress but also costs in what will undoubtedly be a difficult time for them once you pass. To ensure that your estate is given to the people that you choose when you pass it is important to prepare a legal Will . If you do not make a legal Will, your estate will be distributed using a fixed formula determined by the government.
- Consideration to your individual circumstances
- Blended families
- Advice regarding the possibility of claims against your estate
- The protection of assets
- Establishing Will, Power of Attorney and Advanced Health Directives
Power of Attorney
A power of attorney is a formal document giving another person the authority to make personal and/or financial decisions on your behalf.
Personal decisions relate to your care and welfare, including your health care, (e.g. deciding where or with whom you live or consenting to medical treatment).
Financial decisions relate to the management of your finances (e.g. paying your bills and taxes, selling or renting your home, using your income to pay for your needs or invest your money).
Enduring power of attorney
You would use an enduring power of attorney to appoint someone to make financial and/or personal decisions on your behalf.
For financial decisions, you can nominate whether you want the attorney to begin making financial decisions for you straight away or at some other date or occasion, such as once you’ve lost capacity to make these decisions.
Your attorney’s power to make personal decisions only commences when you lose capacity to make these decisions.
How to make an enduring power of attorney
To make an enduring power of attorney, you must understand the nature and effect of making an enduring power of attorney, including:
the consequences of preparing the enduring power of attorney
that you may specify or limit the power to be given to your attorney, and instruct your attorney about the exercise of the power in the enduring power of attorney
when the power begins
that once the power begins your attorney will have full control over the exercise of the power (subject to any terms in the enduring power of attorney
that you may revoke the enduring power of attorney at any time while you have capacity to do so
that the power continues even if you lose capacity
if you lose capacity you are effectively unable to oversee the use of the power.
General power of attorney
You would use a general power of attorney to appoint someone to make financial decisions on your behalf for a specific period or event, such as if you’re going overseas and need someone to sell your house or pay your bills.
It’s used while you can still make your own decisions and ends once you no longer can (i.e. you lose capacity).
Advance Health Directive
An advance health directive (AHD)—sometimes called a living will—is a formal way to give instructions about your future health care. It comes into effect only if your cognitive health deteriorates and you become unable to make your own decisions (i.e. lose capacity to make decisions).
An advance health directive:
outlines what medical treatment or health care you want if you can no longer make decisions for yourself. It can be general (e.g. that you wish to receive all available treatment) or specific (e.g. that you wish to decline a certain medical treatment)
enables you to appoint an attorney for health and personal matters
includes information that health professionals should know, including health conditions, allergies, and religious, spiritual or cultural beliefs that could affect your care.
Specific instructions
In your AHD, you can give specific instructions about certain medical treatments, such as whether you want to receive life-sustaining measures—such as tube feeding or resuscitation—to prolong your life.
You can also outline the quality of life that would be acceptable to you. For example, you might ask that life-sustaining measures be withheld or withdrawn if you have:
a terminal illness with no known cure or chance of recovery
severe and irreversible brain damage, and you can’t communicate
a severe illness or injury that you’ll probably never recover from.
Who can make an AHD
You can make an advance health directive if you’re over 18 and have the capacity to do so, meaning you:
understand the nature and consequences of your health care decisions
understand the nature and effect of the directive
freely and voluntarily make these decisions
can communicate your decisions in some way.
When to make an AHD
The best time to make an advance health directive is now, before any urgent health condition arises. However, it’s particularly important to make one if:
you’re about to be admitted to hospital
your medical condition is likely to affect your ability to make decisions
you have a chronic medical condition that could cause serious complications, such as diabetes, asthma and heart or kidney disease.
Choosing your attorney
When you make an enduring power of attorney, the attorney can make personal and/or financial decisions on your behalf, which will have the same legal effect as if you’d made them yourself (subject to any restrictions you impose in the document).
Find someone you trust who’d be willing to take on the responsibility. They must:
be at least 18 years old
not be your paid carer (a person receiving a carer’s pension is not considered a paid carer)
not be your health provider
not be service provider for a residential service where you are resident.
For personal matters, consider family members or a close friend who understands your personal wishes and health care needs.
For a financial attorney, consider someone who is responsible with their own money and understands financial matters. The person you appoint must not be bankrupt.
Be careful who you choose as your attorney. You’re potentially giving another person total control over your assets and the ability to make personal decisions about your health care and accommodation when you can’t do so yourself.
What an attorney must do
act honestly and with care
recognise your right to confidentiality
consider your existing supportive relationships, values and culture
apply the general principles (PDF, 238KB) under the Powers of Attorney Act 1998.
In relation to health care decisions, an attorney must:
ensure any decision made contributes to your health and wellbeing
choose the least intrusive method of treatment where possible
consider your views and wishes
consider the advice of your doctor or other health care providers
comply with the health care principle under the Powers of Attorney Act 1998.
In relation to financial matters, an attorney must:
avoid entering transactions that may result, in their interests (or those of attorney’s relations, business associates or close friends) conflicting with your interests
keep records and accounts of dealings and transactions
keep your property separate from their own (unless it is jointly owned)
not give your property away, and make only reasonable gifts for birthday/Christmas presents or donations that you would normally make yourself.
Revoking your enduring power of attorney
You may revoke an enduring power of attorney at any time while you have capacity to make this decision.
Several other circumstances will bring an enduring power of attorney to an end
Your enduring power of attorney will end if you:
die — If you die, your enduring power of attorney is revoked in its entirety.
get married — Unless your enduring power of attorney states otherwise, it is revoked if you get married. However, if your husband or wife is already your attorney, your power of attorney is only revoked to the extent that it gives power to someone other than your husband or wife.
get divorced — If you divorce, the power of attorney is revoked to the extent that it gives power to your former spouse.
enter into a civil partnership — Unless your enduring power of attorney states otherwise, it is revoked if you enter into a civil partnership. However, if your civil partner is already your attorney, your power of attorney is only revoked to the extent that it gives power to someone other than your civil partner.
terminate your civil partnership — If you terminate your civil partnership, your enduring power of attorney is revoked to the extent that it gives power to your former civil partner.
make an inconsistent document — Your enduring power of attorney is revoked to the extent of any inconsistency with any later documents you complete, such as an advance health directive or another enduring power of attorney.
It will also end if your attorney:
withdraws — Your attorney may withdraw by giving you a signed notice or by getting the court’s leave to withdraw.
becomes your paid carer or health-care provider — If your attorney becomes your paid carer or health-care provider, your enduring power of attorney is revoked to the extent that it gives that attorney power for a personal matter.
becomes incapable — Your attorney’s power is revoked if he or she is no longer capable to make a decision about a matter.
becomes bankrupt or insolvent — If your attorney becomes bankrupt or insolvent, your enduring power of attorney is revoked to the extent that it gives that attorney power for a financial matters.
dies.
If your attorney behaves improperly
In rare cases, attorneys have spent assets unwisely or sold the family home inappropriately. In such cases, the Public Guardian has the power to investigate an attorney and has several options available to resolve the matter to best protect the adult concerned. Additionally, QCAT or the Supreme Court can remove an attorney or revoke an enduring power of attorney.
Should you do it yourself using a legal kit or should you ask a lawyer to draft it?
There are two main risks with DIY Wills.
First, there’s a high chance you will sign it incorrectly. Each State in Australia has specific legislation about the signing and witnessing of Wills. The kit will come with extensive instructions on how to sign your Will correctly. However, it is amazing how many times such instructions are not understood or followed.
We know this because during our Wills conferences, we explain in detail how to sign a Will and Power of Attorney and then provide detailed follow-up written advice repeating these steps and we encourage our clients to call us if they have any questions during the signing of their Wills. Yet when our clients send us back their signed documents for checking, we still see some with signing errors that need to be re-signed. And our clients are clever cookies! It is just that Will and Power of Attorney signing isn’t straightforward.
Clients also often forward us copies of their previous Wills. So often where this is a DIY Will, it has been signed, witnessed or dated incorrectly.
Second, whilst for some people, the limited options provided by a DIY kit will be OK for their purposes, for many it will not. No matter how well it is put together, no kit can cater for the infinite variety of circumstances that affects what sort of Will a person needs. If the DIY Will doesn’t meet your needs, the outcome could be disastrous for your family, especially if you have a blended family, young children, troubled beneficiaries or complicated financial and family arrangements.
There is also the risk that your words will create ambiguity or be misconstrued or won’t be able to be put into effect. Poor drafting may cause a result quite different from what you intended.
Finally, a lawyer can correct any misunderstandings (such as what assets can or can’t be dealt with via a Will) or discuss different options with you, such as who to appoint as executor or the most tax effective method of distribution. Or they can draft your Will to contemplate future life changes, such as marriage or additional children, so you don’t need to update your Will when this happens.
We all have wishes about how our assets should be distributed after our death.
A well-drafted Will gives you peace of mind that you have done all you can to enable your wishes to be fulfilled and your loved ones provided for.
DIY Wills can be very expensive
A recent Queensland Court of Appeal case, Masci v Masci [2015] QCA highlighted a family legal dispute arose over a DIY Will and the intentions of the deceased will-maker. This case highlights the risks of Estate Planning without seeking professional legal advice and relying on DIY Will kits that do little to explain the legal process to the Will maker.
The Court proceeding lasted three-and-a-half years and the costs associated with the proceedings were far more greater than the cost of a lawyer providing legal assistance at the time the Will was being drafted. The case serves as a warning regarding DIY wills. This case in particular highlighted problems that could have been avoided by the help of an estate planning lawyer at the time of making the Wills providing advice to:
- Sever Joint tenancy; and
- Draft the Wills thereafter.
If you do not seek legal advice during a Will drafting process, this can often result in a multi-partied dispute and lengthy and costly court proceedings to discern the intentions of original will-makers, as well as the rights and interests of the succeeding parties to the Estate.
At the same time as considering your Will we strongly recommend that you also put in place plans for any future incapacity through Power of Attorney-financial and health directives, and advanced health directive- documents. This will ensure that if you somehow become unable to make decisions about your finances, your medical treatment or living arrangements then the person or persons who you trust to make these decisions can do so unhindered.
DOCUMENT COSTS-
Our fixed fee (for professional fees) include personal appointment with you, document preparation and appointment for document review and signing of documents:
- CURRENT SPECIAL OFFER OF COST OF ONLY $150.00 PER DOCUMENT
Where necessary, Home or Nursing Home appointments are available in Hervey Bay area, at extra cost.
Contact us to find out more or to arrange a consultation with Claire.
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