Guardianship,
Wills & Power of
Attorney
Planning Ahead
7 AUGST2013
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
Wills
• Why you need one & how to get one
Power of Attorney
• Decisions about your finances
Guardianship
• Decisions about your health and
lifestyle
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 enough
In Writing
Signed
• Your signature
must be
included at the
end of the
document
• Two witnesses must
be present when you
sign your will
• Witnesses must also
sign the document.
Witnessed
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 WILL
The 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
Day
Local Office: 158 King Street, Newcastle
Phone: 1300 364 103
Website: www.tag.nsw.gov.au
MARRIAGE & DIVORCE
If 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
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 STUDY
Your 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
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:
1st
Your spouse or de facto partner
2nd
3rd
Your unpaid carer
A relative or friend who has a close
personal relationship with you
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
“Appointment
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