Jul 20, 2022 | Wills and Estates
What is a Power of Attorney?
An attorney is someone who has the legal power to make decisions on your behalf. A Power of Attorney is a legal document that appoints someone to act on your behalf in particular financial or health related matters. This document can be prepared by a wills and estates solicitor, who can also provide advice on choosing a Power of Attorney.
What You Need to Consider when Choosing a Power of Attorney
Having a Power of Attorney means someone else can make several types of life-changing decisions on your behalf. Therefore you should make sure you consider the following things.
1. Choosing the Right Person
Your first instinct when nominating an attorney may be a close relative or friend. However, it is important to consider that they may have to make very tough decisions in the future. Choose someone who is mature and responsible. You should select someone you trust to put your own interests above their own.
2. General Power of Attorney
A general Power of Attorney is typically created for a specific task and/or with a specific expiry date. This Power of Attorney lasts while you have capacity (i.e. you are capable of making sound medical and/or financial decisions on your own behalf). It also lasts for the duration of the specific purpose/task for which the power was created. A common example of this is when a company appoints one director to sign all documents on the company’s behalf. Likewise if you appoint your solicitor to sign a contract on your behalf, you are appointing the solicitor as an attorney.
3. Enduring Power of Attorney
There may come a time in your life where you no longer have the mental capacity to make decisions. An Enduring Power of Attorney appoints someone to attend to your personal financial and property related affairs once you lose mental capacity. The document must be prepared before you lose capacity, and can include things like selling your properties and managing your finances. An Enduring Power of Attorney is not used until you lose capacity.
To discuss your specific needs when choosing a Power of Attorney, and to prepare the documents that best suit you, please get in touch.
Jul 15, 2022 | Family Law, Wills and Estates
A Power of Attorney is a legal document that gives a trusted person the legal authority to act for you and to make legally binding decisions on your behalf if you are unable to make these decisions yourself, such as in the case of serious illness. If you do not have a Power of Attorney then you should contact us and find out more.
Below are 6 common Power of Attorney questions that you should know the answers to.
1. In what circumstances is a Power of Attorney important?
- To relieve yourself of the day-to-day demands of financial paperwork and record keeping;
- As a safety net when travelling or to allow someone to handle your affairs in your absence;
- To avoid burdening family or friends with the responsibility of looking after your affairs; or
- If you are unable to manage your prosperity or financial affairs.
2. Does the Attorney need to be a lawyer?
The person appointed does not need to have legal qualifications – you can appoint anyone. Deciding on the person to be appointed should be done with careful thought and consideration as you are providing them with significant power.
An ideal attorney should:
- Have integrity;
- Be willing to act in that capacity;
- Have competence in areas of relevance;
- Be able to act in a business-like manner;
- Be able to spare the time necessary for the task;
- Live in the locality in which they are to act;
- Be agreeable to respecting the confidentiality of the donor’s (the person giving the Power of Attorney) affairs; and
- Be impartial and have no known conflict of interest.
3. Are there different types of Powers of Attorney?
There are two types of Powers of Attorney.
A General Power of Attorney is:
- Only valid while the donor has legal capacity;
- Useful if you are going away for an extended period and you do not want the authority to continue should you lose legal capacity; and
- Usually drawn up for a specific purpose.
An Enduring Power of Attorney (EPA) which:
- Continues to be valid even if the donor loses legal capacity due to disability or illness;
- May empower your attorney to make financial, property, lifestyle and health decisions;
- May be activated when required or upon loss of legal capacity; and
- Allows your attorney to commence or to continue to manage your affairs even if you have become unable to give lawful instructions.
4. Is it better to have more than one attorney?
We recommend that you do have more than one attorney, or a substitute attorney. Therefore if the appointed attorney cannot act or continue to act, as it gives you more flexibility. Common instances where more than one attorney is appointed include:
- When siblings are appointed together
- A spouse and a child are appointed together
You can appoint attorneys to act “jointly” (this means they must agree on everything) or “severally” (this means one of the appointed persons can make decisions alone).
5. Should I pay my attorney?
This is not necessary to give legal effect to the power, and would normally only be considered if the attorney is a professional.
6. How do I know if the donor has sufficient mental capacity to make a power of attorney?
There is no simple formula, but in general terms they must be able to:
- Understand the major consequences of a decision;
- Take responsibility for making that choice; and
- Make a choice based on the risks and benefits that are important to them.
If there is any doubt about capacity, it’s best to get in touch with a medical professional and ask for a written opinion. Remember, different powers require different levels of understanding. If a medical opinion about capacity is sought, it is wise to have the Power of Attorney signed on the same day as you get the medical report so there can be no subsequent claim that the appointment was invalid.
To find out more about Powers of Attorney and their benefits call us on (02) 9963 9800 or via our contact form here.
Jul 6, 2022 | Wills and Estates
Writing a Will can ease stress for both you and your loved ones by providing you with peace of mind that your assets will be dealt with in the way you decide. However, often people wonder if it is worth getting a lawyer to write a Will for them, or whether they can write it themselves.
Are Lawyers Necessary to Write a Will?
While DIY Will kits can be found on websites, in post offices and sometimes from life insurance companies, it is not advisable to use these services.
Common mistakes made by people who choose to do their own Will include not signing the document properly, not having it witnessed correctly, and trying to bequeath assets or part of their estate that they don’t have full legal ownership over. Not only can this create significant conflict after someone’s death, it also takes longer to resolve, and more importantly costs much more to allocate assets if a Will has not been created properly.
Step 1: Drafting Your Will
Though fees can vary, you can organise a fairly simple Will with a lawyer for approximately $500–$800. It is recommended that you update your Will every five years, or when significant life events happen, such as buying a house, getting married or divorced, or having children.
Step 2: Consider All Possible Situations
Try to think of future scenarios that may impact the execution of your Will. It is vital to address scenarios where you and the named beneficiaries in your Will pass away at the same time. As a backup option, you may want to name someone outside of your immediate family, or a charity as an alternative beneficiary. By anticipating these alternative situations, you have a number of alternative scenarios built into your Will.
Step 3: Select an Executor
It is important that you choose someone you trust and who will be able to administer you estate according to your wishes to be the executor of your Will. You must notify the executor that you have chosen them so they can be prepared. This is the person you name in your Will to delegate your estate – your money and assets.
Step 4: Decide on Your Power of Attorney
Take this opportunity to consider appointing a power of attorney. You need to prepare for a situation in which you are incapable of making decisions due to being injured or sick. You can prepare for this by organising a power of attorney, so that you may choose who would act on your behalf in those scenarios. This person would be responsible for making financial and legal decisions. You can appoint more than one person to have power of attorney.
Step 5: Draft a Care Plan
In a care plan you are able to leave detailed instructions around your future care. You may have certain decisions already made around resuscitation on life support, pain relief and organ donation. Put your preferences in writing by completing an ‘Advance Care Directive’ and nominating someone to make medical decisions on your behalf if you are unable to do so. Some care plans are incorporated in a Deed of Enduring Guardianship.
Step 6: Store Your Important Documents Safely
Finally, it is recommended that you draft a document with all your important passwords and account details. This may include bank account details, debts (including loans), investments, insurance and superannuation details. You may choose to store this information in an envelope with your Will, saying, ‘Open in the event of my death’, or something similar. We allow clients the opportunity to store important documents with us (in safe custody) without charge to them.
Further information
It is important to be fully aware of what it takes to make a Will and other related documents and obtain professional legal assistance to ensure your wishes are accurately represented in those documents. If you would like further information regarding Wills or general Wills/ Power of Attorney / Guardianship advice, please do not hesitate to contact one of our experienced estate planning solicitors on (02) 9963 9800 or via email or via our contact form.
Jun 28, 2022 | Wills and Estates
Through persistence and dedication, Etheringtons Solicitors successfully challenged a Will and recovered a significant sum for the rightful beneficiary, a Children’s Charity.
A married couple with no children or relatives executed mirror Wills and left everything to a good cause – a charity for children. When the wife passed away, unbeknownst to the charity, the husband suddenly changed his Will to leave everything to various people who he claimed had helped him after his wife passed away, including a man who claimed to be his brother. After changing his Will, the husband became unreachable and moved in with his alleged brother.
On behalf of the charity, Etheringtons Solicitors regularly checked the court website for probate notices and after twelve months of persistent checking, there was a probate notice for the husband. Etheringtons contacted the solicitor who drafted the new Will. Much to the charity’s surprise, Etheringtons was advised that the charity was no longer a beneficiary and that the funds from the estate had already been distributed to the late husband’s newly added beneficiaries.
Our principal knew something wasn’t right and decided to look into the matter further. Consequently, Etheringtons uncovered that at the time the new Will was executed, it was evident the husband showed signs of dementia and therefore lacked the capacity to execute a new Will.
Etheringtons, on behalf of the charity, commenced proceedings seeking to revoke the grant of probate. Various medical documents of the late husband showed that he suffered from serious cognitive impairment and after his wife had passed away, his symptoms had deteriorated further. Not long after the proceedings were commenced, Etheringtons conducted a settlement conference with the charity, the executor and the new beneficiaries and as a result, successfully convinced the new beneficiaries to return close to one million dollars to the rightful beneficiary, the children’s charity.
If it wasn’t for Etheringtons’ perseverance, victory would not have been achieved for the charity and, more importantly, for the vulnerable children the charity helps.
If you would like to know more, please call us on (02) 9963 9800 or email [email protected].
Jun 25, 2022 | Wills and Estates
Making a Will can often feel like a daunting and unnecessary task. However, the unfortunate reality is that death is inevitable and proper creation of a Will is always an important task, regardless of the circumstances. In this article, we explore five of the most common objections to making a Will and why these objections may not always hold up in reality.
1. I’ve told my family my wishes and I know they will do the right thing.
Sometimes knowing the wishes of a loved one who has recently passed away can mean a variety of different things to different family members. Different people may interpret or understand your instructions in different ways. Additionally, verbal instructions are an inadequate way of dealing with your estate, as they are hard to prove and can result in delays and expenses for the administration of your affairs. The death of a family member is already an emotionally difficult time. Through ensuring you leave behind a clearly laid out and validly executed Will, your family will have one worry taken off their hands.
2. I’m a young person – the need to make a Will is far off for me.
Even with the simplest of estates in the case of a young person, the creation of a Will, enduring power of attorney and advance care directive helps ease the burden on those left, and may prevent the need to apply to the court for clarity. Making a Will as a young person also means you will have a greater understanding of your assets and affairs when you need to add to your Will in the future.
3. My affairs are just too complex.
Although estates and assets may seem overwhelming and complex, an experienced legal professional can talk through your affairs with you and help find an appropriate process for dealing with them.
4. What’s the point? Wills are successfully challenged a lot.
This is a common misconception. Wills and Estates lawyers are highly qualified in assessing the risk of a successful challenge and can suggest ways to reduce the value of the assets that are vulnerable to a challenge. Assets vulnerable to a Will challenge are assets that are owned under your own name. Your lawyer can advise you on mechanisms to reduce this risk, for example through transfer to a trust, jointly owning bank accounts and changing ownership of property to ensure your assets are dealt with in the way you desire.
5. I already have a Will from quite a few years ago.
It is important that all Wills are regularly reviewed. Circumstances will inevitably change in life, with events such as the birth of a child, the start or breakdown of a relationship or assets being bought or sold significantly changing the necessary terms of your Will. It is commonly suggested that Wills should be reviewed at least every three (3) years to ensure they reflect your current circumstances. Old Wills could be obsolete and may result in your estate not being dealt with in accordance with your wishes, or being challenged by disgruntled and self-entitled beneficiaries.
Further Information
Making a Will is vital to ensure your estate is dealt with in your desired way. If you would like more information on how we can assist you in making or updating your Will, do not hesitate to contact us on 9963 9800 or here. For more information, check out our blog here.
May 2, 2022 | Wills and Estates
The recent death of Gerald Cotten, former Chief Executive Officer of Canadian cryptocurrency exchange company, Quadriga CX, emphasises the importance of planning your electronic after-life. Mr Cotton’s death in India at the age of 30 has reiterated the chaos that can be created if digital assets have not been considered in an Estate plan.
Mr Cotton was the sole custodian of encrypted passwords protecting over $200 million worth of cryptocurrency (virtual currency created and stored electronically such as Bitcoin, Litecoin and Ethereum). His untimely death has left numerous Quadriga customers unable to access their assets. Mr Cotton’s widow states that she played no role in the running of Quadriga and, despite her efforts, has been unable to unlock the laptop used by Mr Cotton nor access any of his accounts.
This case is a timely reminder of how important it is to consider what should happen to our digital assets when we die.
What are digital assets?
A person’s digital affairs may encompass a range of online transactions, activities and accounts such as:
- Cryptocurrency;
- Financial assets including online bank accounts and shares;
- Intellectual property attached to domain names or online literary works;
- Online sporting and gaming accounts;
- Loyalty programs such as Flybuys Rewards and Frequent Flyers;
- Online shopping accounts such as eBay and Amazon;
- Personal/business social media accounts such as email, Facebook, Linked-In.
All should be considered, and included, in an effective estate plan.
Issues unique to certain digital assets
Traditional cash-based assets such as money deposited in a bank, shares or other paper-based investments are held by title to the owner and can be transferred to the beneficiary with the relevant documentation. However, ownership of digital assets like Bitcoin is anonymous, with owners accessing their cryptocurrency with private keys which are used to unlock and deal with the assets. This information may be held on a computer device (via a digital wallet), on a USB, or printed separately. These assets can easily be overlooked or ‘keys’ misplaced, representing unique challenges when it comes to administering an estate.
Many digital assets are also held globally and may therefore raise jurisdictional issues from an estate planning perspective. In most instances, there is no uniform legislation governing access to a deceased person’s online accounts, so it is imperative that these matters are dealt with specifically in an estate plan.
There are some simple steps you can take to ensure your online life is appropriately dealt with when you are gone.
1. Identify your digital assets
You should start by making a list of your digital assets (including online accounts) and determining what you would like to happen to them when you die.
Keep records of your online accounts and subscriptions including user names and passwords and store this information in a secure place. Remember your online accounts and login details are likely to change frequently and your list should be maintained accordingly.
2. Understand your online accounts
Understanding how various accounts are dealt with by service providers will help to determine the type of action you would like taken when you die.
For example, Facebook account holders can advise in advance whether their account is to be deleted or memorialised. A memorialised account can provide a place for family and friends to share memories after a person dies on the deceased’s profile, and any content shared by the deceased person remains visible to those with whom it was shared. Nobody can log into a memorialised account.
Some loyalty programs such as Frequent Flyers may not be transferable or redeemable after a person dies, so it may be wise to keep tabs on these types of accounts to utilise benefits regularly.
3. Include digital assets in your will and appoint a technology custodian
Your will should define and identify important digital assets and provide executors and trustees with appropriate directions and powers to deal with them.
Assign your executor, or other trusted person who is familiar with technology, the role of managing your online life after you die and ensure this direction is included in your will. Record your after-life technology instructions with respect to each account separately and ensure these instructions are secure, but accessible to your technology custodian. Never disclose passwords in your will.
4. Online maintenance
Online accounts contain personal information which should be protected. Technology presents a real risk of identity fraud and unmonitored accounts can be particularly vulnerable. Regular monitoring and unsubscribing or deleting unused accounts can help minimise risk and keep your technology life tidy.
Regularly downloading photos and videos from your mobile to a storage device can ensure that memories are accessible to your family when you die.
5. Consider incapacity
It is also important to consider what happens to your online life in the event that you are incapacitated. Appointing a trusted person to manage your online affairs and including specific instructions in an enduring power of attorney is a logical step to ensure the appropriate management of your digital wealth if you are incapacitated.
The instrument making the appointment should be specific to the jurisdiction in which the assets are held, and in this respect, more than one document may be required.
6. Consider trusts
It may also be beneficial to hold substantial digital assets through a trust structure, if possible, for greater protection and better taxation outcomes. In doing so, the trust must be considered and dealt with under the Will, which should nominate beneficiaries of the trust or shares in the trustee company and include provisions to ensure the trust can achieve the desired objectives.
Conclusion
It has become increasingly difficult for executors, lawyers and family members to ascertain and access online assets after a person dies, with many institutions operating in a ‘paperless’ environment. Certain digital assets such as cryptocurrency can present additional problems for a deceased’s family. Inaccessible online accounts make it difficult to identify assets, and leaving online accounts open indefinitely raises concerns of potential identity theft.
Good online management and ensuring your digital assets are included in your estate plan will help your executors and family manage your online life after you are gone.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9963 9800 or via our contact form.
