Wills & Estate Planning Lawyers Central Coast

A Will is a legal document that names the people you choose to receive property and possessions of yours at the date of your death.  These people are known as your beneficiaries.

Your property and possessions comprises everything you own, including your home, land, car, money in bank accounts, insurance policies, shares, jewellery, pictures, furniture, and so on.  Making a Will is the only way you can ensure your assets will be distributed in the way you want after you die.

When you should change your Will?

• Marriage or commencement of a de-facto relationship including same-sex and domestic relationships
• Divorce
• Birth of a child or grandchild
• Death of a beneficiary or executor
• Change in financial circumstances including bankruptcy
• Changes to legislation e.g. Superannuation, succession law, income tax, capital gains tax and other taxes
• Place of domicile

A ‘Power of Attorney’ is a legal document you can sign to appoint another person (called your Attorney) to act for you in relation to financial affairs.  This document states what the Attorney is authorised to do.  This can be rather narrow and explicit, or as general as you wish.  Any lawful action taken by the Attorney under the Power of Attorney is binding on you, so it is important to appoint someone you can trust.

When the Power of Attorney is signed, the document can be given to the Attorney, or you can hold onto it until the need arises.  When it is provided to your Attorney, it can be used to prove that he or she is authorised to act on your behalf.  Even though you have appointed an Attorney, you can still personally carry out any transactions, such as banking and the sale of property, while you retain the ability to do so.

What is a Binding Death Benefit Nomination?

A BDBN is a legally binding nomination that allows you to advise the Trustee of your Will who is to receive your superannuation benefit in the event of your death.

In correspondence to your Powers of Attorney and the rights of your nominated persons, when drafting these documents, you must think about whether you want your Attorney to be able to approve, make or revoke a Binding Death Benefit Nomination. Having this power would require the inclusion of an express authority and statement of whether you wish all or just one of your Attorneys to encompass this specified power.

However, if you do not want this authority to be obtainable to your Attorney/s, it is essential to contain an expressed limitation in the instrument to that effect. Considerable attention is vital in conscripting your Powers of Attorney, as clarifying authorisation to who has what right is crucial in conducting a successful appointment.

An ‘Enduring Guardian’ is someone you appoint, at a time when you have capacity, to make personal, health or lifestyle decisions on your behalf should you lose the capacity to make them for yourself.

You can appoint more than one Enduring Guardian if you wish, and you should indicate which decision-making areas you want your Enduring Guardian to have.  These are called functions. You can give your Enduring Guardian as many or as few functions as you like.  For example, you can authorise your Enduring Guardian to decide such things as where you may need to live or what medical treatment you should receive.

Your Enduring Guardian must act within the principles of the Guardianship Act, being in your best interests and within the law.  You cannot give your Guardian a function or a direction that would involve them in an unlawful act, such as euthanasia.