Power of Attorney

Do you have a valid will?

A Will is a document that states how you would like your assets to be distributed when you die. It also identifies people or organisations you would like to be responsible for carrying out your wishes.

It is a legal document, and to be valid, there are a number of processes that must be followed.

According to Section 7 of the Wills Act 1997 (Vic), a Will is not valid unless:

  • It is in writing and signed by the Testator (Will-maker) or by some other person in the presence of and at the direction of the Testator; and
  • The signature is made with the Testator’s intention of executing a Will, whether or not the signature appears at the foot of the Will; and
  • The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; and
  • At least two of the witnesses attest and sign the Will in the presence of the Testator but not necessarily in the presence of each other.

You must also appoint an Executor. An Executor is someone who is going to manage your estate – i.e. collect your assets, pay your liabilities and distribute your estate to your beneficiaries in accordance with your Will.

 

Why use a lawyer to draw a Will instead of a Will Kit you can buy from the Post Office?

To save money, many people choose to write their own Will. This may do more harm to your beneficiaries than help.

Here’s why you should spend the money:

  1. You may be sure that your Will is valid;
  2. You may minimise the risk of litigation if a person makes a claim against your estate;
  3. You may be asked to put measures in place for scenarios which you have not thought of before but which your lawyer has picked up;
  4. You may be advised how to make your bequests in a way that helps a beneficiary, not harms them.

Don’t forget: It is a part of Hassall’s Litigation Services to minimise the risk of litigation!

 

Case Study

A client wanted to leave her property to her son who was living in it with her. However, her son was receiving Centrelink benefits. If he inherited the house, he would not be entitled to receive those benefits.

If the son did not inherit the property outright upon his mother’s death and instead received a life interest for him to occupy the property i.e. he had the right to live in the property without owning it, he would still be entitled to receive his benefits. This enabled him to maintain his Centrelink benefits and live rent-free in the property.

In this scenario, the Executor would manage the household expenses such as bills which are paid by the Estate. The house remains in the name of the Estate.

 

Excluding people

If you want to exclude a person from benefiting from your Estate, you must state this in your Will and include the reason(s) why. This helps with showing that you intended to exclude a person from your Will and it was not merely an oversight.

 

Final check

Are you sure your Will is created such that your beneficiaries will be taken care of and only the people you want to benefit from your Estate will? We can remove the doubt – speak to us.

 

This article provides information that is general in nature and is not a substitute for legal advice.

We do Wills and Powers of Attorney!

Are you earning an income? Do you have children? Are you above the age of 18 years? Do you have assets? Do you have a spouse/partner?

 

If you answer yes to any of the above questions then you need a current Will and Powers of Attorney.

 

Every person over the age of 18 years should have a Will which stipulates who they wish to bequeath their assets to. The Will can also stipulate funeral and burial wishes and it can also explicitly exclude certain people from receiving a benefit from their estate.

 

At the fixed price of only $750 (including GST), Hassall’s Litigation Services will draft 3 documents for you:

 

  1. A Will;
  2. A Medical Power of Attorney; and
  3. An Enduring Power of Attorney (Financial & Personal).

 

What are you waiting for?

 

Get yourself sorted today and give your family the peace of mind knowing that if anything happens to you, they know what your wishes are.

 

For more information, speak with us today.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Baby Boomers are you ready?

A Power of Attorney is a legal document under which a person (referred to as the ‘Principal’) who has the capacity to make decisions, may appoint another person (referred to as an ‘Attorney’) to make decisions on his/her behalf.

A new law is in place – what does this mean to you?

The Powers of Attorney Act 2014 (“the Act”) commenced on 1 September 2015. A copy of the Act can be found HERE.

The purpose of the Act is to:

  1. clarify and consolidate Victoria’s enduring Powers of Attorney laws;
  2. create the role of supportive attorney;
  3. improve the protections against abuse of the Enduring Powers of Attorney.

Powers of Attorney made prior to 1 September 2015 will remain valid. The Act does not affect Enduring Powers of Attorney (Medical Treatment), which will continue to be regulated separately under the Medical Treatment Act 1988.

 

So what does this all mean to you?

When you appoint a Power of Attorney, you will ensure your personal, medical and financial matters are managed properly if you no longer have the physical or mental capacity to manage these issues yourself.

If no one is appointed as your Power Of Attorney, VCAT is the only authority capable of appointing someone to this role. This process can take at least six months and additional legal costs can be incurred.

To avoid a VCAT proceeding, you must ensure that the appropriate documents are prepared and executed while you (or the person you are organising Power of Attorney for) still has decision-making capacity.

The preparation of these forms should be unique to each person as individual circumstances are always different. There are a number of different types of Powers of Attorney, including:

  • Enduring Power of Attorney (EPOA);
  • Supportive Power of Attorney (SPOA);
  • Medical Power of Attorney (MPOA).

 

The best time to complete your Power of Attorney was yesterday, the second best time – is today. For further information or to receive the correct forms – speak to us.