Guardianship, Wills & Power of Attorney

Planning Ahead7 A U G S T 2 0 1 3

The information provided in this session is for information purposes only.

It must not be relied on as legal advice.

You should seek legal advice about your own particular circumstances.

WHAT IS THE HUNTER COMMUNITY LEGAL CENTRE?

The Hunter Community Legal Centre (HCLC) is an independent, not for profit, community legal centre funded by the State and Federal Governments.

HCLC provides free legal advice and assistance to disadvantaged people who live, work or study in the Newcastle, Lake Macquarie, Port Stephens, Great Lakes and Hunter Valley regions of New South Wales.

You can call HCLC for free legal advice on 4040 9120 at the following times:

Monday: 10.00 am – 12.00 noon

Wednesday: 2.00 pm – 4.00 pm

Friday: 10.00 am – 12 noon

TODAY

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CSWills• Why you need one & how to get one

Power of Attorney• Decisions about your finances

Guardianship• Decisions about your health and

lifestyle

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WHAT IS A WILL?

A will is a legal document that names the people you want to receive your property and possessions at the date of your death.

These people are known as your beneficiaries.

This includes everything you own, including your home, land, car,

money in the bank, superannuation and insurance

policies, shares, jewellery, household contents, antiques,

collections, intellectual property

DO I NEED A WILL?

It is essential to make a will if you are concerned about

who will receive your assets and belongings after you die.

WHAT IF I DON’T HAVE A WILL?

•Anyone who dies without a valid will, has their assets divided up according to a Government formula rather than their own wishes.

• Sometimes your estate goes to your relatives, but if your nearest living relatives are your cousins, your estate will go to the State Government.

A man passed away but had not created a will. He had an estate worth $180,000.He had no birth certificate and it could not be established that his birth was ever registered. Authorities could not establish who was his next of kin.

His whole estate passed to the Government.

WHAT IF I DON’T HAVE A WILL: CASE STUDY

A 21 year old girl with no will was killed in a motor vehicle accident during the course of her employment. The girl’s estate was awarded $200,000 in compensation.

The government formula discussed above said that this money should be divided equally between her mother and father.

In this case the girl’s father had deserted the family weeks before she was born. She had had no contact with him throughout her life.

Nonetheless, he was still entitled to $100,000.

A VALID WILL MUST BE…

• A will can be typed or handwritten

• Verbal promises are not enoughIn

Writing

• Your signature must be included at the end of the document

Signed • Two witnesses must be present when you sign your will

• Witnesses must also sign the document.Witness

ed

If your will is not made in this manner, it may not be

enforceable.

CAN I MAKE A WILL MYSELF?

• You can make a will yourself if you wish. Printed will forms are available from most newsagents and post offices.

• There is no legal requirement that a Solicitor draft your will.

• However, it’s a very good idea to seek legal advice before making such an important document.

WHY GET HELP TO DRAFT MY WILL?

A man filled in a ‘do-it-yourself’ Will form that he had bought at his local post office.

He intended to leave his whole estate to his wife. He accidentally wrote her name down in the wrong section of the form. He left the section where he was supposed to nominate his beneficiaries blank.

The will was not valid because it effectively left his whole estate to no one.

LEGAL LINGO: INTESTACY

If you die without a Will you are said to die “intestate.”

Even if there is a will, intestacy may occur for a number of reasons:

• the Will says who some things should go to, but forgets to distribute some other assets

• the Will is not valid because it has not been signed and witnessed properly

• the person who made the Will did not have the mental capacity to do so at the time

• the Will has been poorly drafted and the technical legal requirements have not been met.

The Supreme Court of NSW will appoint an “administrator” to deal with intestacy. This may not be the person you would have chosen yourself.

The administrator’s duties involve arranging the funeral, collecting assets, and distributing them after paying any debts and taxes.

WHO CAN HELP ME WRITE MY WILLThe Hunter Community Legal Centre cannot

draft wills.

You can get free help with your will from:• A state government department called

NSW Trustee & Guardian• Some private law firms offer a free will

service tp community groups (eg. Ashurst’s Pro Bono Wills Service)

You can also get help from:• A private solicitor• A private trustee service(look them up online or in the yellow pages)

NSW TRUSTEE & GUARDIAN This is a specialist government

body that drafts wills and administers estates.

If you appoint them as the executor of your estate, they can draft your will for free (although you will have to pay some administrative fees)

• You can book an appointment at their local office or attend a Community Wills DayLocal Office: 158 King Street, NewcastlePhone: 1300 364 103Website: www.tag.nsw.gov.au

MARRIAGE & DIVORCEIf you made a will when you were single, and then get married later, your will might be revoked.

It is a good idea to make a new will after marriage, even if it is the same.

Divorce will revoke:• Any gift to your former

spouse• The appointment of your

former spouse as executor, trustee or guardian.

Divorce does NOT revoke the whole will. But is still worth

updating it after divorce

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WHAT IS A POWER OF ATTORNEY?A Power of Attorney enables

you to authorise someone to make financial decisions on your behalf if you ever find yourself in a situation where you

lack the capacity to make those decisions yourself.

People might appoint a power of attorney if:• They are going to be overseas for a

long period of time• They are temporarily ill/bedridden• When they expect to lose capacity as a

result of a chronic illness (in this case you would need an enduring POA)

WHAT CAN A POWER OF ATTORNEY DO?

Among other things the person that you have nominated can:

• Deal with banks

• Transfer money

• Pay bills such as rates, taxes, electricity, phone bills and nursing home fees

• Deal with shares

• Buy or sell real estate

• Collect income and government benefits

• Deal with health fund accounts

WHAT IF I LOSE CAPACITY & DON’T HAVE A POA?If you lose capacity to manage your finances, and don’t have a POA, your family might need to apply to the Guardianship Tribunal to appoint someone to take on the role.

This will involve a tribunal hearing where evidence will be heard to assess your mental capacity. The ultimate choice of who gets to make your financial decisions lies with the tribunal, not with your family.

CASE STUDYYour partner is diagnosed with Alzheimer’s disease . Their

health is deteriorating and you decide that you want to sell the family home and buy a smaller place closer to health care facilities and closer to the rest of your family.

The family home is in both your names. Your partner no longer has the mental capacity to sign the documents that need to be signed for the sale of the house to go ahead. Your partner has not granted you power of attorney.

You will have to apply to the Guardianship Tribunal to appoint you as your partner’s financial manager in order to sell your home.

WHAT IS “CAPACITY” ANYWAY?

We say that someone has legal capacity if they can:

• Understand the facts and choices involved

in making a decision about something

• Weigh up the consequences of those

choices

• Understand how those consequences will

affect them

• Communicate their decisions to others

HOW DO I APPOINT A POWER OF ATTORNEY?• You sign a form appointing

your chosen person or organisation as your attorney

• You may specify the types of decisions that your attorney will be able to make

• Your attorney agrees to their appointment by signing the acceptance section of the form

Making a POA doesn’t mean you lose control over your

financial affairs.

You can still make your own financial decisions as long as

you have capacity.

HOW CAN I ACCESS THIS FORM?• You can purchase power of

attorney forms at your local post office or newsagency.

• You can contact the NSW Trustee & Guardian office, or make an inquiry through their website

• Private solicitors generally have these forms and can assist you to draft your own.

WHO CAN I CHOOSE?You can choose whoever you like. But

it is important that they:

• Are someone you trust• Have the skills to make important

financial decisions• Have the capacity to understand

their role • Are happy to act as POA

The role is voluntary and the person you nominate can resign at any time.

EXTRA STEPS FOR PROPERTY MATTERS

If you want your attorney to be able to

deal with any real estate that you own in NSW, you have to have the POA document

registered with the Land and Property Information Division of the NSW Department of Lands.

HOW DO I CANCEL OR CHANGE MY POA?

You can cancel the POA at any time so long as you still have capacity.

All you need to do is:

Inform the

attorney that you want to cancel

the POA in

writing

Inform your bank and other relevant groups that the POA has

been cancelled

Destroy the

original POA

document and any copies

ENDURING G

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WHAT IS ENDURING GUARDIANSHIP?

POA allows someone to make financial decisions on your behalf .

Enduring Guardianship allows someone to

make health and lifestyle decisions on your behalf if you lose capacity some time in the future.

WHAT DECISIONS CAN AN ENDURING GUARDIAN MAKE?

You can choose what decisions your enduring guardian is allowed to make. You might choose to give them the power to:

• Decide where you live(eg. Living alone or in a nursing home)

• Decide which support services will be engaged to assist you

• Book medical and dental appointments• Make decisions about medical treatments

WHAT IF I DON’T HAVE AN ENDURING GUARDIAN?If you lose capacity and you don’t have an enduring guardian, the role will automatically go to:

Your spouse or de facto partner

Your unpaid carer

A relative or friend who has a close personal relationship with you

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WHO CAN BE AN ENDURING GUARDIAN?The person you choose to be your

enduring guardian must be:

• Over 18 years of age

• Willing to take on the role

• Someone that you trust to make decisions in your best interests

You cannot appoint someone who is paid to provide you with treatment, accommodation, support or care.

Although, you CAN appoint someone who is receiving a carer’s allowance to look after you.

APPOINTING AN ENDURING GUARDIAN

Discuss Enduring

Guardianship with your

family

Talk to the person you

want to appoint as

your enduring guardian

Fill out an “Appointme

nt of Enduring

Guardianship Form” from the

NSW Guardianship Tribunal

Make sure your form is witnessed

by a solicitor, barrister,

court registrar or

NSW Trustee & Guardian employee

REMEMBER you can choose which

decisions your

Enduring Guardian

can make.

REVOKING ENDURING GUARDIANSHIP

If you still have capacity, you can revoke an appointment of enduring guardianship by filling out a form from the NSW Guardianship tribunal.

If you lose capacity, the Guardianship Tribunal will make decisions about changing or revoking the appointment.

Your appointment will be revoked automatically if you get married. You will need to lodge a new form reappointing your enduring guardian.

RECAP

You can get your affairs in order by:

1. Writing a will

2. Thinking about power of attorney

3. Thinking about enduring guardianship

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ACKNOWLEDGEMENTS

This presentation has drawn heavily on information provided in:

• Factsheets and Brochures produced by the NSW Trustee & Guardian

• The Law Handbook (12th Ed, Redfern Legal Centre Publishing. 2012)

• Information on the ASIC’s MoneySmart.gov.au website

• Information on the NSW Government’s PlanningAheadTools.com.au website

• http://www.planningaheadtools.com.au/media/useruploads/file/FINAL_EG2011_reprint.pdf

• Factsheets and brochures produced by the NSW Guardianship Tribunal