Yesterday I lost one of my best friends to cancer, who was one of my best supporters. If you have attended my breakfasts or Christmas parties you would have met Allison Hein.
I am so very fortunate to have had her as a friend and this newsletter is a celebration of life, friendship, respect and acceptance.
In memory of this wonderful soul I have several quotes for consideration today:
1. “Many people will walk in and out of your life, but true friends will leave footprints in your heart.”
2. “The friend is the (wo)man who knows all about you and still likes you.”
3. “The most beautiful discovery true friends make is that they can grow separately without growing apart.”
4. “If your not making mistakes, then you’re not doing anything. I’m positive that a doer makes mistakes.”
As part of celebration of life it is very necessary to ensure in the event of misfortune that we prepare for the inevitability of death. As a Family Lawyer I know that preparation is so important to enable our final days to be comfortable and to ensure that our loved ones that we leave behind can finalise our matters with the minimum of fuss. This brings me to matters such as a will, an Enduring Power of Attorney and Enduring Guardian.
WHAT IS A WILL?
A will is written document setting out how a person, the testator, wishes their property to be distributed upon their death. The will must provide for an executor to be appointed to administer how his or her estate is to be distributed according to the terms of the will. It is a legal document that needs to be drafted with care taking into account the needs of those close to him or her, as set out in the Succession Act. The Act defines a class of persons in a “close personal relationship” if in special need, can be provided for from the estate although not mentioned in the will. The courts are very cautious in disturbing the wishes of a testator but if there is a strong case demanding fairness, the court has discretion to make an award to such person from the estate.
In the event that a person does not have a will, that person is deemed intestate and the Act sets out statutory provisions for the distribution of the assets of the estate.
These matters amongst others must be considered when drafting a will to ensure that the testator’s wishes will not be subject to challenge. Due to these multiple considerations we strongly advise that everyone over the age of 18 with assets, however small, have a will drafted to reflect their wishes. As life changes we recommend that a will should be reappraised every 5 years or so.
WHAT IS AN ENDURING POWER OF ATTORNEY?
An Enduring Power of Attorney is a document in which you appoint one or more persons who you trust and who have agreed to act on your behalf, should you ever lose legal capacity with respect to your money and assets. Your attorneys if you have appointed more than one can either act jointly or severally, according to your wishes. The Power of Attorney it is drafted so that it only operates when you lose capacity. Its operation ceases should you once again regain capacity. It can be drafted to give specific powers however it does not provide the power to act regarding to your lifestyle wishes.
WHAT IS AN ENDURING GUARDIAN
The appointment of an Enduring Guardian or Enduring Guardians grants the power of your to those persons or people to act in relation to your lifestyle choices should you lose capacity. They cannot act against any wishes that you have made whilst you have capacity, but can make decisions regarding where you live and medical decisions on your behalf. Again similarly to an Enduring Power of Attorney, the power lapses once you have regained capacity.
In most cases the Enduring Power of Attorney and Enduring Guardian are never required but it is a comfort for them to be in place should the need ever arise whilst there is a necessity for a will to ensure to your wishes regarding your money and assets are bequeathed as you wish.
If you have any questions do not hesitate to contact me.
On a separate note, I am now active in assisting non-residents wishing to establish companies in Australia. It is a requirement under the Corporations Act that at least one director be living in Australia and if there is a secretary then that secretary must also live in Australia. I am currently acting for Chinese companies in this capacity and am offering this service to new clients.
Wishing you all the best and until next time,