Estate planning – what on earth is that?!

Since immigrating to Australia from the USA, one of the cultural traits of Australians that I’ve noticed is that many people are awkward and reluctant to talk about death. While this is understandable, as a lawyer, I would suggest that planning for what happens to your possessions and money (your “estate”) when you die, is a very wise thing to do. It is also wise to consider making plans about nominating someone to have the authority to manage your financial affairs in the event you are too ill or incapacitated to do so.

So what should people do to plan for what happens to their estate after they die?

There are three main documents to consider when looking at estate planning.

First, there is a will in which you provide your testamentary directions for what happens to your assets and/or guardianship of your minor children when you die.

A will provides those left after your death with directions for what should happen both to your assets and/or guardianship of your minor children when you die. Failure to have a will in place will often mean that the intestacy laws (especially under the Succession Act 2006 (NSW)) will apply, which may lead to the division of assets and guardianship of your children that is not what you would have wanted had you made a will.

There are also legal considerations when you prepare your will. These include whether a person may have a right to challenge your will and overturn the directions you have made in your will. You should seek legal advice in relation to your will to help minimise the risk of your will being challenged and your wishes being unexecuted.

Second, there is an enduring power of attorney, which provides a nominated person with authority to manage your legal and financial affairs, including land dealings, even in the event that you lose mental capacity to manage your own affairs.

Third, there is an enduring guardianship, which provides a nominated person with authority to make lifestyle and health and medical decisions on your behalf in the event that you do not have capacity to make such decisions yourself.

Enduring powers of attorney and enduring guardianships are often only thought of when there begins to be a concern about an individual’s capacity. However, by the time an issue of capacity arises it is far more complicated (and therefore costlier) to have an enduring power of attorney or enduring guardianship completed. Additionally, if there is a concern about an individual’s capacity, then it may no longer be possible (due to lack of capacity) for an individual to make an enduring power of attorney or enduring guardianship which leaves the quite unpleasant process of approaching NSW Trustee and Guardian as the only real option to gain guardianship orders. This, of course, would add significantly to the stress of spouses and loved ones in already stressful and difficult situations and as they face making difficult decisions, especially since nursing homes and similar facilities may require an enduring power of attorney and enduring guardianship.

Enduring powers of attorney and enduring guardianships are extraordinarily powerful documents, and you should seek legal advice in relation to all of the above when considering your particular needs.

Why you shouldn’t delay making a will:

Quite often, people delay consideration of what may happen in the event of their death. This is especially true of younger adults with young families. However, especially, but not exclusively, in relations to the question of guardianship of children, a will is a very important document for parents of any age to have in place to provide clear direction about what would happen in the event of the parent or both parents’ death(s).

The bigger picture- life is so short, let’s try to heal our relationships with others:

At the end of the day, life is so precious, isn’t it? We can never take it for granted.

We are all human, and every family has some issues of discord or even alienation. In the Christian tradition, we often refer to the effects of sin upon our lives as alienating ourselves from God (as we reject and ignore Him) and damaging our relationships with one another.

When we look at setting our affairs in order, we should also look at how we may be able to bring reconciliation and healing to troubled relationships so that we can rest in peace knowing that those we love most dearly know what they mean to us.

Please feel free to contact me to discuss any of the above, including preparation of your wills, enduring power of attorney, or enduring guardianship. Stonebraker Lawyers offers all these services (and others) at fixed-fee rates.

Johnathan Stonebraker

Principal, Stonebraker Lawyers

Email:office@stonebrakerlawyers.com.au

Telephone: 02 4580 7170

Offices at Level 1, Old Hawkesbury Hospital, Windsor

Please note that the above is provided by way of general comment only and is not to be considered as legal advice in respect of your particular situation or needs. Please feel free to contact Stonebraker Lawyers for legal advice in respect of any of the above.

Liability limited by a scheme approved under Professional Standards Legislation