Wills, Trusts & Estates
We administer all Wills and Estate matters in Queensland and New South Wales.
WILL or LAST TESTAMENT:
A will or testament is a legal declaration by which a person, the testator , names one or more persons to manage his or her estate and provides for the distribution of their property upon death.
If a person dies not leaving a will, or the will is declared invalid, the person will have died intestate, resulting in the distribution of the estate according to the laws of succession of the State in which the person resided.
A relationship created at the direction of an individual, in which one or more persons hold the individual’s property subject to certain duties to use and protect it for the benefit of others. We establish and amend (vary) trust deeds for family trusts, superannuation trusts, unit trusts and hybrid trusts.
The degree, quantity and extent of interest that a person has in real and personal property. Such terms as estate in land tenement and hereditaments, may also be used to describe an individual’s interest in property.
When used in connection with probate proceedings, the term encompasses the total property that is owned by a descendent prior to the distribution of that property in accordance with the terms of a will, or when there is no will, by the laws of intestacy in the State of domicile of the deceased. It means, ordinarily, the whole of the property owned by anyone, the realty as well as the personality.
ADVANCE HEALTH DIRECTIVE:
This is a legal document that stipulates instructions and/or consent to future medical treatment and procedures. The AHD is valid only when and if the person giving the directive is no longer capable of providing consent and make reasonable judgements regarding their care and treatment.
Examples of inability to consent include coma, dementia and Altzheimers. The AHD has implications in deciding whether to continue life support, perform medical tests, operations or any other ‘extraordinary treatment’.
- Preparing and executing an Advance Health Directive:
You can make an advance health directive if you are over 18 years of age and have the capacity to do so. Capacity means that you:
1. understand the nature and consequences of your health care decisions
2. understand the nature and effect of the directive
3. freely and voluntarily make these decisions
4. communicate your decisions in some way.
- When to make an Advance Health Directive
The best time to make an advance health directive is right now, irrespective of the state of your health. However, it is particularly important to make one if:
1. you are about to be admitted to hospital
2. your medical condition is likely to affect your ability to make decisions in the future
3. you have a chronic medical condition that could result in serious complications such as diabetes, asthma, heart or kidney disease.
- How to make an Advance Health Directive
1. Make a time to come into our office and we will supply the form to you.
2. You then need to take the form to your doctor and complete the medical part of it with him or her (book a long consultation).
3. Return it to us for final completion and witnessing by a lawyer.
4. We will then copy the document for you and hold the original in safe custody.
5. Discuss with your family and tell them where the original is located.
Before completing the form, first take time to carefully reflect on the decisions you have to make. Remember, you are putting in place a plan that will determine your future health care. Consider what is important to you. Discuss these matters with your family or close friends.
POWER of ATTORNEY:
A Power of Attorney is a written authorisation to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorising the other to act is the principal, grantor or donor (or the power). The one authorised to act is the agent or attorney.
A Power of Attorney is very different from a Will. Making a Will allows you to state how you want your assets to be distributed after your death. A Will also allows you to choose an Executor who will be responsible for making sure your wishes are met.
- There are two types of powers of attorney:
A General Power of Attorney and an Enduring Power of Attorney, both types involve a formal agreement giving someone else the power to make decisions on your behalf. It works like this:
1. you sign a form giving power of attorney to the person of your choice;
2. you specify the types of decisions that the person you choose can make as your attorney under power, and when it comes into effect, they can then act on your behalf if necessary.
The decisions that your attorney makes for you have the same legal force and effect as if you had made them yourself. If you are unable to make your own decisions, decisions can be made for you on a formal or an informal basis. Informal decisions can be made by an adult’s existing support network of family and close friends. This is distinct from decisions being made on a formal basis by an attorney appointed under an enduring power of attorney or advance health directive, a statutory health attorney, a guardian or administrator appointed by law or by a Court or Tribunal.
- The difference:
General Power of Attorney
A General Power of Attorney involves you formally giving someone else the power to make financial decisions on your behalf for a specific period or for a specific transaction. It is used while you have capacity – that is, you are still able to make your own decisions. The General Attorney ends when you lose capacity – that is, you are not able to make your own decisions. For example, you might choose to appoint an attorney if you are going overseas and needed someone else to sell your house or pay your bills. You then simply revoke it upon your return.
Enduring Power of Attorney
An Enduring Power of Attorney allows you to appoint someone to make personal and/or financial decisions on your behalf when you are unable to make your own decisions. It comes into effect immediately you lose