Wills & Estates

The Succession Act (NSW) 2006 governs what will happen with your estate following your death. If you have not left a valid will, the rules of intestacy determine what will happen to your assets. Accordingly, it is vital that you ensure that you have a valid will to ensure that your loved ones benefit from your estate and to avoid costly and painful disputes following your death.

Many people do not have a valid will. Many other people rely on do-it-yourself will kits or informal documents to make arrangement for their estate following their death. The requirements of the Succession Act to determine the legitimacy of a last will and testament are very specific. Most do it yourself wills informal documents are simply not sufficient to meet these requirements.

Having a valid will is a vital and prudent estate planning step for all adults. From the moment that you acquire real estate or other valuable assets, enter into a marriage or de facto relationship or have children, you should make a valid Will. Your will determines how your Estate is distributed and ensures that your wishes are preserved following your death.

It is uncomfortable for most people to contemplate their ultimate demise. It is not unusual for people to put off making a valid will to avoid contemplating their own death. However, ignoring the inevitable will not delay it and as a vital part of your financial planning and estate management, the preparation and execution of a valid will should never be delayed or ignored.

Having a formal will is important to you and your loved ones.

Even if you have a formal will, part or all of it may be set aside by the Court if you have failed to make adequate provision for dependants or other people that may have an interest in your estate. You need competent legal advice to ensure that your last will and testament preserves your testamentary intentions.

If you have separated or are divorced, it is vital that you prepare a new will.

At Carson & Associates, we have the skills and experience to ensure that you have a valid will and to assist your executor with the proper administration and management of your estate.

 


Powers of Attorney

Your will only operates once you are dead.

There are many circumstances where it may be necessary for someone else to deal with your property whilst you are still alive. For example, you may intend to travel for a long period of time leaving assets that require management in your absence. Or you may be immobile or otherwise require assistance with the management of your assets and financial resources.

Another circumstance where you may require the assistance in the management of your assets and finances following temporary or permanent incapacitation. As a consequence in the advance of modern medicine, a person may remain incapacitate or even in a coma for many years. In those circumstances, the existence of a formal power of attorney is vital for the proper management of your assets and financial resources, particularly if any of those assets are held jointly with another person such as a spouse or de facto partner.

A Power of Attorney is a powerful instrument. A person holding a Power of Attorney has the legal authority to deal with your property as if they were the legal owner, including the sale of any of your assets (your attorney has the legal obligation of managing your estate in your best interests). Accordingly, you should only nominate as your attorney someone whom you trust implicitly.

Before dealing with real estate and company shares the Power of Attorney must be registered.

A Power of Attorney may continue to operate after you have lost legal capacity to manage your own affairs. This is referred to as an Enduring Power of Attorney (because it endures after you have lost legal capacity). There are formal requirements that must be met before a Power of Attorney can become an enduring appointment. These requirements include the provision of a solicitor's certificate attached to the Power of Attorney document.

A Power of Attorney may be revoked at any time provided that you have legal capacity.

A Power of Attorney is a vital part of the management of your estate and financial planning, especially if you own assets jointly with a loved one. You cannot appoint an attorney once you have lost capacity. Accordingly, it is vital for you to review your affairs and consider whether or not it is prudent to appoint an Attorney to manage your financial affairs prior to the loss of capacity.

At Carson & Associates, we have the skills and experience to advise you in the preparation and execution of your Power of Attorney.


Enduring Guardianship

Your Power of Attorney only operates with respect to your assets. It does not deal with your personal affairs such as where you live, what medical and dental treatment you receive and what personal services that you receive.

There are many circumstances where it may be necessary for someone else to deal with your personal affairs whilst you are still alive. IF you are incapacitated as a result of illness or misadventure, you may not be able to make decisions regarding your own personal care and needs.

In such circumstances, the appointment of an Enduring Guardian prior to your incapacitation is extremely helpful in empowering your loved ones in making those decisions on your behalf.

The Enduring Guardianship appointment also gives you the opportunity to formally advise and empower your guardian to make decisions regarding your wishes regarding the refusal of medical treatment and preserving your right to die in certain circumstances. Armed with a formal Enduring Guardianship appointment, your guardian will be able to make decisions about your medical care and the refusal of care in circumstances such as:

• Where you are in the terminal phase of an incurable or irreversible illness;

• Where you are in a permanent Coma;

• Where you are in a persistent vegetative state; or

• If you are unlikely to be able to live without life support.

It is not possible to appoint an Enduring Guardian after you have lost capacity. Accordingly, you should consider whether or not it is prudent for you in your circumstances to appoint an Enduring Guardian to make decisions regarding your health care and to determine what treatment you receive in the unfortunate event of you permanently losing capacity to make those decisions for yourself.

At Carson & Associates, we have the skills and experience to advise you in the preparation and execution of your Power of Attorney.

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