AREAS OF PRACTICE
Our Wills and Estates services include:
- • Complex Wills
- • Enduring Powers of Attorney
- • Enduring Power of Guardianship
- • Advance Health Directives
- • Probate applications
- • Letters of Administration
- • Contested Wills and Estates
- • Superannuation Claims
WILLS
A last Will and Testament is used to pass assets from one person to another. Preparing a Will not only lets you specify exactly where your assets should go, it also allows you to name the person or people you would like to use to manage the process.
If there is no Will in place, the State of Western Australia will decide how to distribute your assets. This may result in decisions being made on behalf of you, often in a way contrary to your wishes. A Will allows you to make many of the vital decisions necessary to properly distribute your estate rather than forcing the State to make all these decisions for you.
By preparing your Will, you can significantly ease the burden on your loved ones when you pass away. Further a valid will helps your loved ones avoid disputes between themselves and helps them take the necessary steps to carry out you wishes quickly and easily.
The Following Milestones In Life Is An Appropriate Time To Make A New Will
- You have married, separated or divorced;
- You have entered a new relationship – and in the process formed a blended family;
- You have had a baby or become a grandparent;
- You have recently retired;
- You have lost a loved one;
- You have bought a house or acquired another asset; or
- A beneficiary or appointed executor in your existing Will has passed away.
Canterbury Madison Lawyerscan assist you with the preparation of simple through to highly complex Wills, providing accurate, relevant, and cost-effective advice.
GENERAL AND ENDURING POWERS OF ATTORNEY
A Power of Attorney (POA) is a document signed by you (called legally the donor, principal or appointor) which gives another person (called legally either the donee, attorney or appointee) the authority to act as your agent when you need someone to look after your affairs.
Appointing a person as an attorney is giving them the authority to deal with your legal and financial affairs. It does not give the person the authority to deal with other personal areas of the donor’s life, such as health care, residential and accommodation arrangements, and lifestyle matters.
Your Power of Attorney operates while you are alive but ceases upon your death, at which time your Will takes over.
Different Forms Of Power Of Attorneys
There are two different forms of powers of attorney – they have similarities but there are some important differences.
- A general power of attorney is an authority given to a donee to deal with a donor’s financial affairs. For example, it allows a donee to buy and sell things or to operate a donor’s bank account if he or she is away on holidays overseas.
- An enduring power of attorney is a power of attorney that operates even though the donor is legally incapacitated, for example is unable to communicate after a stroke, or becomes senile. In these circumstances, a general power of attorney ceases to operate and actions taken under it after that time are invalid.
How A Power Of Attorney Works
A power of attorney document provides proof of the donee’s power to act on the donor’s behalf. It must be shown whenever the donee is doing something in place of the donor.
A general power of attorney and an enduring power of attorney both give an attorney authority to deal with a person’s financial affairs. However, while a general power of attorney is cancelled automatically if a person becomes legally incapacitated, an enduring power of attorney will still be effective.
Giving either power of attorney does not mean that a person loses control over their affairs. A person can still deal with whatever matters he or she chooses, while the donee can only do the things that the form allows. However, giving a power of attorney to someone who is not absolutely trustworthy is very dangerous.
ENDURING POWER OF GUARDIANSHIP
An Enduring Power of Guardianship (EPG) is a legal document that authorises a trusted person of your choice to make important personal, lifestyle and treatment decisions on your behalf, should you ever become incapable of making such decisions yourself (example - if you are suffering from dementia or you are in a coma).
The rules governing the execution and operation of an Enduring Power of Guardianship are set out in Part 9A of the Guardianship and Administration Act 1990.
To make an EPG you must:
- • be 18 years of age or older
- • have full legal capacity (this means you must be able to make a formal agreement and understand the implications of statements contained in that agreement).
How an Enduring Power of Guardianship works
You have control over how your Enduring Power of Guardianship will work. The scope of decision-making authority given to your enduring guardian is determined by you. You may authorise your enduring guardian to make the same range of decisions as a plenary guardian. This would enable your enduring guardian to:
- • decide where you live, whether permanently or temporarily
- • decide who you live with
- • decide whether or not you work and, if so, any matters related to that work
- • make treatment decisions on your behalf to any medical, surgical or dental treatment or other health care (including palliative care and life-sustaining measures such as assisted ventilation and cardio-pulmonary resuscitation)
- • decide what education and training you receive
- • determine who you associate with
- • commence, defend, conduct or settle any legal proceedings on your behalf, except proceedings that relate to your property or estate
- • advocate for and make decisions about the support services you access
- • seek and receive information on your behalf.
As the level of decision-making authority is determined by your Enduring Power of Guardianship, you can maintain decision-making authority over some aspects of your life while passing on authority for more complex decisions, which can be beneficial if you have a condition that develops over an extended period of time.
Alternatively, you may limit the decision-making authority of your enduring guardian. For example, you may authorise your enduring guardian to make decisions about any treatment you receive, but not about where you live or who you associate with.
ADVANCE HEALTH DIRECTIVE
An Advance Health Directive (AHD) is a legal document that enables you to make decisions about the treatment you would want (or not want) to receive if you became sick or injured and were incapable of communicating your wishes.
An Advance Health Directive allows you to let people know your values and preferences about your healthcare and treatment, should you become seriously ill or injured and not able to make decisions.
An AHD would only come into effect only if you were unable to make reasoned judgements about a treatment decision at the time that it was required. In short, if you required treatment but were unable to communicate your wishes, your AHD would become your voice.
The term 'treatment' includes medical, surgical and dental treatments, including palliative care and life-sustaining measures. You cannot use an AHD to formally register your interest in organ and tissue donation and you cannot include instructions relating to Voluntary Assisted Dying (VAD) in this document.
How an Advance Health Directive works
An Advance Health Directive sits at the top of the hierarchy of treatment decision-makers.
The hierarchy sets the order in which health professionals must seek treatment decisions when treating a person with a decision-making disability (as per Sections 110ZJ and 110ZD of the Guardianship and Administration Act 1990).
This means that even if you had an enduring guardian, the health professional would be obliged to follow your wishes as outlined in your AHD, except in very limited circumstances.
It recommended that you discuss treatment decisions with your doctor before completing your AHD. There after one of our highly trained Lawyers will be able to assist you with preparation of the document.
PROBATE
Probate is a Court issues a document which confirming that the will is valid. It also confirms the appointment of the legal personal representative (executor) who is tasked with ensuring your loved ones wishes in the will are fulfilled.
When a loved one passes away with a valid Will, Probate is a critical legal step that is required before an executor can administer a person’s estate and distribute it to the beneficiaries.
Probate gives the executor or administrator the authority to deal with assets, such as bank accounts, shares and property. It allows the assets to be transferred to the name of the executor or administrator so that they can deal with them as per the Will, transfer or sell them.
Without probate, the executor or administrator can’t distribute the assets to beneficiaries. Beneficiaries are the people that are left something in the will or under the law of intestacy– like money, property or belongings.
The deceased person’s bank accounts will be frozen (usually except to pay for the funeral) until probate has been issued.
Vogt Legal’s expert lawyers can help make your probate applications to the Supreme Court of Western Australia a pleasant and easy process. We will help guide you through the process, ensuring there is as little stress as possible for you, during this difficult time.
LETTERS OF ADMINISTRATION
When a person dies without leaving a valid Will they are said to have died ‘intestate’.
If a person dies intestate then their assets will be divided according to a fixed legal formula which varies between each of the States and Territories.
As there is no Will to confer authority on a person to administer the estate, until an application is made to the Supreme Court for a Grant of Letters of Administration the deceased person’s estate cannot be properly administered.
What Are Letters Of Administration?
‘Letters of Administration’ are an order granted by the Supreme Court which gives a person (the Executor) the legal right to deal with the estate of a deceased person where the deceased person died without leaving a valid Will.
Without a valid Will naming an executor, someone (typically a major beneficiary) must apply to the Supreme Court for a Grant of Letters of Administration.
If the application is approved, the applicant will be appointed as the ‘Administrator’ of the estate and will be authorised to administer the estate and distribute the deceased’s assets according to the relevant intestacy formula.
If there is no family member willing or able to act as the administrator of the estate, the court may appoint a public trustee, who will charge a professional fee for acting in the role.
There are two kinds of Letters that are granted in Western Australia under the Administration Act 1903 (WA) which governs how a deceased’s estate is to be distributed on intestacy.:
the Letters of Administration and
the Letters of Administration with The Will Annexed.
As the titles suggest, the difference between the grants lies in whether the deceased has left a will.
Applying for Letters of Administration may be one of the difficult steps you might have to take when a loved one passes away without a valid Will.
Our highly skilled lawyers can help provide you with expert legal advice and make this difficult time an easier one.
CONTESTED WILLS AND ESTATES
In Western Australia, eligible persons can Contest a Will by making a Family Provision claim if they have been left without adequate provision from a deceased estate.
Pursuant to section 7 of the Family Provision Act 1972 (WA), eligible applicants who can contest a will are:
- a spouse or de facto
- a person receiving or entitled to receive maintenance from the Deceased
- a child of the deceased
- grandchild of the deceased who was being maintained wholly or partly by the deceased immediately before the deceased’s death;
- or who, at the date of the deceased’s death, was living and one of whose parents was a child of the deceased who had predeceased the deceased; or
- who was born within 10 months after the deceased’s death and one of whose parents was a child of the deceased who had predeceased the deceased;
- a stepchild of the deceased who was being maintained by the deceased immediately before the deceased’s death;
- a stepchild of the deceased, if
o the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and
o the value of that property, at the time of the parent’s death, is greater than the prescribed amount;
If you are an Executor of a Will which has been contested, or you are a family member who wishes to contest a Will please contact us.
Our highly skilled lawyers can help provide you with expert legal advice and assist you in achieving your objectives.
SUPERANNUATION CLAIMS
Super is an asset that is not automatically included in your will.
The only direct way to leave your superannuation to the beneficiaries is to inform the Trustees of your superannuation fund of these beneficiaries. This requires a Binding Nomination that stipulates that your superannuation fund must distribute the money in your account to the nominated beneficiaries.
Beneficiaries are individuals you would benefit from your superannuation fund. You can nominate your spouse or partner, children or anybody financially dependent on you as a beneficiary.
Distribution Superannuation Fund Using Your Will
Another way to distribute superannuation is by using your Will. In your superannuation account, you can nominate the Executor of your Will as the beneficiary of your superannuation money. Then you state in your Will, with the help of a h“superannuation clause” how you would like this money to be distribute between your beneficiaries.
By doing so you are actually stipulate in your Will who is to receive the benefits of your superannuation account. By nominating your Executor as the beneficiary with your fund, and then rely on this person to distribute your super according to your will.
Nominating a superannuation beneficiary in your Will provides peace of mind that your money will go to the right people when you die. But only the Executor of your estate is allowed to distribute your super according to your will.
Canterbury Madison Lawyers handles all disputes relating to superannuation funds. Please contact us if you require legal advice.