Wills & Estate Planning
Life is unpredictable. So too is death. Nobody wants to think about their death, but ensuring that you have a valid will and have taken steps to control how your estate is dealt with and distributed after you pass away, eliminates the need for your loved ones to deal with your estate if you die intestate, that is, without a will. This can be a stressful process for them at a time when they are grieving, but it can be avoided.
At Paula Sutherland & Associates, we encourage everyone, no matter how big or small their estate may be, to have a will in place. There are many benefits in ensuring that you have a valid will, including:
- allowing your family the opportunity to grieve after you pass away without having to worry about the absence of a will that details how you want your estate dealt with;
- having control over where your assets are distributed after you pass away;
- benefitting the people of your choice, who may not have otherwise benefitted under an intestacy; and
- minimising the potential for disputes between family members regarding your assets and how they should be distributed.
It is equally important to regularly update your will. Circumstances change – children are born, beneficiaries predecease you, your asset pool changes by either the growth or disposal of assets, and so on. You should update your will when there is a significant event in your life, such as marriage or divorce, or otherwise at least every two to three years to ensure that your wishes remain current and valid.
At Paula Sutherland & Associates, we offer comprehensive, accessible and affordable assistance to clients in relation to their estate planning needs. For an appointment or to discuss drafting or updating your will, contact us.
POWERS OF ATTORNEY
Just as important as making a will, your estate planning should include a power of attorney. Mental incapacity can also be an unpredictable eventuality resulting from injury or illness, but ensuring you have an Enduring Power of Attorney in place will protect your estate in circumstances where you are no longer in control. Alternatively, in other cases, you may simply benefit from a General Power of Attorney by having the ability to delegate to other person/s who can affect transactions on your behalf whilst you still retain the mental capacity yourself.
A Power of Attorney is a legal document that appoints a person (the attorney) to make decisions on your behalf about matters that relate to your financial and legal affairs, such as selling or purchasing property and accessing funds in your bank accounts. It does not permit a person to make decisions about your medical or personal affairs – this is achieved via the appointment of an enduring guardian.
To be valid, a Power of Attorney must be:
- made by a person who has the necessary capacity to give instructions to appoint an attorney;
- made by a person over the age of 18 years; and
- registered pursuant to the Tasmanian Powers of Attorney Act 2000.
There are different types of Powers of Attorney, being:
- A Particular Power of Attorney, which limits what your attorney can do with the particular powers vested in them. For example, you could give your attorney specific powers, such as signing leases and contracts and effecting land transfers, but no other access to your general financial affairs. This type of power of attorney can also be enduring, such that it continues after loss of mental capacity on the same limited basis it operated before the loss of capacity.
- A General Power of Attorney effectively permits your attorney to do anything that you can do in relation to your financial affairs. A general power of attorney can be enduring, meaning it will not be revoked in the event that you lose mental capacity.
- An Enduring Power of Attorney, which allows the appointed attorney to act during the enduring phase, that is when you lose mental capacity and/or the ability to manage your own affairs. During this phase you are unable to oversee the attorney’s use of the power, which is why it is critical that you appoint a person or persons that you trust to take on this role.
If you do not have a Power of Attorney, you cannot appoint one after you lose capacity, nor can your family members legally act in the capacity of an attorney and do that which an attorney is legally empowered to do. Should the situation eventuate that you become incapacitated without an Enduring Power of Attorney, an application would need to be made through the Guardianship and Administration Board to appoint an Administrator, which may be granted to an individual, the Public Trustee or a private trustee company for example. In the meantime, your financial assets are not consistently protected as they could be under an Enduring power of Attorney.
Again, it is critical to plan for these unknown contingencies and ensure that your estate is protected in accordance with your wishes should you lose mental capacity.
For more information on Powers of Attorney, please download our digital guide:
Paula Sutherland & Associates are happy to assist you with advising you in relation to the appointment of a power of attorney and attend to drafting and registration for you.