A will is a legal document with instructions as to who you wish to leave your assets to when you die. It includes who you wish to appoint as your executor to manage your estate and distribute your estate in accordance with your wishes.
Although your will is vital when it comes to estate planning, there are other documents that need to be considered that are also equally essential particularly if you no longer have capacity to make decisions for yourself. These include:
- Enduring Power of Attorney
- Enduring Guardianship
- Advanced Care Directives
- Letter of Wishes
Enduring Power of Attorney
A Power of Attorney is a powerful legal document that gives a person(s) the legal authority to make decisions on your behalf in relation to your legal and financial affairs. When you don’t have a Power of Attorney in place, this can cause additional stress for your loved ones requiring them to go through a drawn-out process to obtain the required authority through the NSW Civil and Administrative Tribunal. Arguments may also arise as to who is the best person suitable to take on the role of attorney.
There are two types of Power of Attorney documents being a General Power of Attorney and an Enduring Power of Attorney.
A General Power of Attorney is only valid while you have capacity and becomes invalid when you die or when you lose the mental capacity to make your own decisions.
An Enduring Power of Attorney continues to be valid even if you lose capacity to make your own decisions, however, becomes invalid when you die.
Enduring Guardianship & Advanced Care Directives
If you are ever unable make health or lifestyle decision in the event that you were to lose capacity, an Enduring Guardianship and Advance Care Directive are important documents to help inform this direction.
An Enduring Guardianship is a document authorising someone to make lifestyle, health and medical decisions for you when you do not otherwise have the capability to making those decisions yourself.
Advance Care Directive is a legal document that provides direction to your loved ones as to your healthcare when you cannot make a decision due to your capacity. It is separate to, but a complement to an Enduring Guardianship..
So What happens when you don’t have an Enduring Guardianship in place and you lack the capacity to make your own lifestyle, health and medical decisions? In NSW this decision is usually left to the Guardianship Division of the NSW Civil and Administrative Tribunal as to who is the appropriate person to take on such a role, such as your spouse or child, and in some circumstances the NSW Trustee and Guardian, or alternatively, the courts.
Letters of Wishes
A Letter of Wishes is intended to provide general guidance to the executor or trustee of a person’s estate following their death. Although not legally binding , it gives your executor(s) a much simpler guide in comparison to a Will which can sometimes be overrun by formalities and complicated language structure.
It’s important to ensure all these documents are sorted as part of your estate plan as failure to do so can create uncertainty and stress for your loved ones.
As a way to protect your family and friends so as to ensure they do not have to guess your wishes, contact our team today to assist with your estate planning needs.
For an obligation free telephone consultation, please contact us on (02) 4944 2008 or send us an enquiry through our website.
Please note – the information in this article relates to the law in New South Wales and is general information only. It should not be construed as legal advice.