Author – SALT Member – Kim Kyle DSL Law
When Robert Burns wrote the immortal words, “the best laid plans of mice and men”, he captured a simple life truth: life rarely does what we expect or want it to do.
When we think about our future, we often envision enjoying retirement with loved ones, whether human or furry. We imagine catching up with friends, walking along the beach, and travelling to every part of the world on our bucket list. In reality, few of us achieve all the goals we plan for our future selves. Death, illness, injury, financial constraints, or the ongoing needs of adult children often force us to set aside our best-laid plans.
A ‘set and forget’ or ‘she’ll be right’ attitude can become a loved one’s worst nightmare and a lawyer’s payday.
When Was the Last Time?
At new year, people reflect on the past and make resolutions for the year ahead. Life inevitably brings change, and adjustments are necessary. This same annual tradition should apply to succession planning. At least once a year, or after a significant life-changing event, you should ask and reflect on the following:
Enduring Power of Attorney |
Will |
| When did I last look at my Enduring Power of Attorney and do I know where the original document is located? | When did I last look at my Will and do I know where the original document is located? |
| Do I still have a close relationship with the people I chose as my attorney and are they still willing and able to act as my attorney if I lose capacity? | Are the people I chose as executor still alive, capable of working together and capable of administering my estate when I pass away? |
| Do my attorneys know what kind of health care treatment I would like if I become unable to communicate my wishes? | Does my Will contain gifts that are no longer applicable? |
| Do my attorneys know my wishes about where I want to live if my health deteriorates? | Do I still want to leave my estate to the same beneficiaries? |
| Are my finances in order should my attorneys need to move me or my partner into independent living or nursing care? | Does my Will contain substitute provisions should any of my beneficiaries pass away before me? |
Out-of-date documents
Reflection only works well, however, if action immediately follows. Too often, updating a Will or Enduring Power of Attorney is placed at the bottom of the pile for later consideration. The biggest risk of failing to update an old document is that it no longer reflects your current wishes. It can also cause unexpected expense or stress. For example:
• Attorneys who once lived locally now reside overseas and struggle to make decisions from afar.
• Decisions are made by an attorney who has not spoken to you in years and is unaware of your new preferences.
• Additional legal steps are required to appoint an executor because the nominated executors have passed away.
• Beneficiaries are disappointed because the gift included in the Will no longer exists.
No documents
(A) Enduring Power of Attorney – Health Decisions
Without an Enduring Power of Attorney, statutory health decisions are made by a statutory health attorney. This is the first available and culturally appropriate person to make healthcare decisions for you. If no one is suitable or willing to act, the Public Guardian can be appointed to make healthcare decisions.
While a statutory health attorney can agree to or refuse most medical and dental treatments, including life-sustaining treatment, this is not ideal. The appointed person may not be someone you would have chosen and they may struggle to make decisions without access to your finances to pay bills.
(B) Enduring Power of Attorney – Financial Decisions
If you lose capacity and do not have an Enduring Power of Attorney, there is no equivalent statutory financial attorney. Loved ones cannot access your finances or make financial decisions on your behalf, effectively halting any ability to assist you in your time of need.
Without an Enduring Power of Attorney, a loved one must apply to become your administrator through the relevant State Civil & Administrative Tribunal. Such applications can take months or years to be considered.
(C) Will
If you pass away without signing a valid Will, you are considered to have passed away intestate (i.e., without a Will). Legislation determines who will be the executor of your estate, who is entitled to benefit from your estate and how much that benefit will be. More often than not, the legislation does not reflect your wishes or intentions.
Help is at hand
At DSL Law, we work holistically with financial planners, accountants and aged care living networks to provide you with a service that considers and implements ideal and worst-case scenario plans. From retirement living advice to estate planning, we have experienced solicitors who can assist you when you realise life has changed and so too must your succession plan.
Take control of your future before life determines your future for you.
