The loss of a loved one is a difficult and challenging time for those they leave behind. Being left with the administrative burden of trying to sort out a loved one’s deceased estate can impact emotionally and financially on the entire family.
A will provides certainty for both you and your loved ones. Your family can have peace of mind knowing that if anything happened to you your affairs are in order and everyone will know where they stand. You can have peace of mind knowing that your estate is taken care of and will be dealt with as you intended it to be.
What is a will?
A will is a legal document that allows your property or ‘estate’ to be dealt with in accordance with your wishes. An executor, whom is appointed by you, will collect all your assets, pay all your bills and distribute your estate in accordance with your wishes.
Why do you need a will?
It is more important than you may realise to have a will.
Without a will your estate may be divided in accordance with legislation. Property of significant importance or emotional value may not go to the person you wanted it to. Your family may be put under unnecessary stress in a time that is already difficult.
If you die without a will you are said to have died “intestate”. The Queensland laws of intestacy are outlined in the Succession Act 1981. What this means is that the government will control the way your estate is distributed.
Not having a will can mean:
- Your estate may not be distributed to your loved ones in the way that you would wish
- Your estate may be dealt with in a way that places extra burden on your loved ones at a time of great stress, grief and loss
- The potential for conflict and arguing between family members
- The potential for added financial costs for your family in finalizing your estate
Powers of Attorney
Losing capacity or the ability to make your own decisions about your financial and personal matters, does not just happen to people who are ageing. A loss of capacity can happen at any time in a person’s life and this loss may be temporary or permanent. You could be involved in an accident, or fall ill, rendering you incapable of managing your financial and personal affairs.
If you are over 18 and have capacity to understand the nature and the effect of the power you are giving an Attorney, it’s important you plan for your future by making an Enduring Power of Attorney.
What is a 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 include matters that relate to your care and welfare, including your health care. Personal decisions such as where or with whom you live or whether or not to consent to medical treatment.
Financial decisions relate to how your finances are managed. Financial decisions may include paying your bills and taxes, selling or renting your home, using your income to pay for your needs, or investing your money.
There are 2 types of power of attorney:
- general power of attorney
- enduring power of attorney.
General power of attorney
A general power of attorney is used to appoint someone to make financial decisions on your behalf for a specific period or event. It may include situations where you are going overseas and need someone to sell your house or pay your bills.
A general power of attorney is used while you can still make your own decisions and ends once you no longer can (i.e. you lose capacity).
What does it mean to lose capacity?
You lose capacity to make a decision if you cannot:
- understand the nature and effect of the decision
- freely and voluntarily make the decision
- communicate the decision in some way
Enduring power of attorney
An enduring power of attorney is used to appoint someone to make financial and/or personal decisions on your behalf.
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 do I 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.
If there is any doubt over whether a person has the capacity to make an enduring power of attorney, the Queensland Civil and Administrative Tribunal (QCAT) can make a decision about that person’s decision-making capacity.
Choosing your attorney
When you make an enduring power of attorney, your attorney can make personal and/or financial decisions on your behalf. These decisions will have the same legal effect as if you’d made them yourself (subject to any restrictions you may have imposed which may limit their power in the document).
It is very important that you nominate someone you trust who’d be willing to take on the responsibility.
Your attorney 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.
When appointing an attorney for personal matters, consider family members or a close friend who knows you and understands your personal wishes and health care needs.
When appointing 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 very careful who you nominate 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 if you don’t have anyone to choose as your attorney?
When you don’t have anyone suitable to appoint as your attorney for personal decisions, you can apply to appoint the Public Guardian, who is an independent statutory officer who protects the rights of adults with impaired capacity.
How do I revoke my enduring power of attorney?
You can revoke an enduring power of attorney at any time while you have capacity to make this decision.
Other ways your enduring power of attorney will 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 matter.
What If your attorney behaves improperly?
In some unusual cases, an attorney may 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.