Do I need an Enduring Power of Attorney?

Posted Posted in Estate planning

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document that enables you to appoint a trusted person (or trustee company) to make financial decisions on your behalf.

You may also appoint a trusted person or the Adult Guardian to make personal/health decisions on your behalf.

The person you appoint is known as an ‘attorney‘.

Who may make an Enduring Power of Attorney?

Anyone over the age of 18 years who has full legal capacity may make an enduring power of attorney. In our view, everyone over the age of 18 years who has full legal capacity, ought to have an Enduring Power of Attorney.

Why make an Enduring Power of Attorney?

If you are ill, travelling or simply do not wish to be burdened with the day-to-day management of your financial affairs an Enduring Power of Attorney enables your attorney to manage your financial affairs in accordance with your wishes when you are unable or do not want to act personally.

It is important to note: once you have lost legal capacity (i.e. if you are in a coma following an accident), you are unable to make an Enduring Power of Attorney until you regain your legal capacity.

What if you don’t have an Enduring Power of Attorney?

If you do not have an Enduring Power of Attorney and decisions need to be made for you, the Queensland Civil and Administrative Tribunal may appoint an administrator for your financial decisions or a Guardian for your personal/health decisions.

The person or organisation appointed as your financial Administrator of your Guardian might not necessarily be the person you would have chosen if you had legal capacity.

By making an Enduring Power of Attorney you ensure the person of your choice manages your finances or makes personal decisions on your behalf. By making an Enduring Power of Attorney you can avoid the stress, conflict and anguish that might otherwise be involved if your family or friends are required to apply to the Queensland Civil and Administrative Tribunal for an Order.

An Enduring Power of Attorney is one of the most important documents you will ever sign during your lifetime. We strongly recommend you seek legal advice when drafting an Enduring Power of Attorney to ensure the terms of your attorney’s appointment are appropriate for your circumstances.

Do you know who can access your will?

Posted Posted in Estate planning

It may come as a surprise to you that upon your death your will may be accessed not only by your executor but also by the following people:

  • any person named or referred to in the will, whether as a beneficiary or not;
  • any person mentioned as a beneficiary (whether specifically named or not) in any earlier will;
  • your spouse, parent or issue (children, grand-children etc);
  • any person who would be entitled to a share of your estate if you had died intestate, that is without a will;
  • a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if you had died intestate;
  • a creditor or other person who has a claim at law or in equity against your estate; or
  • any person who is eligible to make a family provision application against your estate.

If your will is admitted to probate, any member of the public may access your will from the Court Registry generally upon payment of a small fee.

During your lifetime, an administrator appointed by the Queensland Civil and Administrative Tribunal (formerly the Guardianship and Administration Tribunal) or your financial attorney appointed by you in your enduring power of attorney may also access your will.

There are steps that can be taken to protect your personal privacy post-death, generally this involves limiting the assets owned by you personally. Most celebrities and high profile business people choose to hold their assets in trusts and companies – not only for asset protection and tax planning purposes, but also for the privacy this affords them.

I recommend you seek legal advice if you would like to know more about protecting your personal privacy post-death.