INSTRUCTIONS Wills, Powers of Attorney and Advanced Health Directive

Transcription

1 INSTRUCTIONS Wills, Powers of Attorney and Advanced Health Directive Date: Next appointment: For further information see file: Documents to be prepared Will Power of Attorney (POA) Advanced Health Directive (AHD) Explanation regarding the nature of a POA and AHD can be found on pages 14 and 18 respectively 1. CLIENT Client 1 Name: Address: Postal address: As above or Contact: W: H: Fax: Occupation: Mobile: Date of birth: Client 2 Name: Address: As for client 1 or Postal address: As for client 1 or Contact: W: H: Fax: Occupation: Mobile: Date of birth: By Lawyers For Lawyers P a g e 1 of 17

2 2. EXISTING WILL Is there an existing will? Yes No Yes No If yes, client to cancel? Yes No Yes No Other arrangements: 3. INFORMAL WILL I want this document to be an informal will for me? Yes No Yes No You should consider the need for an informal will in the event you may lose testamentary capacity or die before a formal will can be executed. If this instruction sheet is intended to operate as an informal will until a formal will can be prepared and duly executed. You and witnesses or a legal practitioner should print this document and sign each page of these instructions intending them to evidence an informal will. 4. EXECUTORS/TRUSTEES Please nominate who you would like to manage the affairs of the Estate. Your Executor is the person responsible for carrying out the directions and wishes as stated in your Will. Ordinarily the Executors are also listed as Trustees of any Testamentary Trusts that are formed. Your Trustee controls the assets of a Testamentary Trust for the benefit of the nominated beneficiaries. The trustee/s decide how to manage the trust assets, and which beneficiaries receive the income and capital of the Trust each year. For couples it is ordinarily followed for the surviving spouse to be the Executor/Trustee of the Estate however depending on the complexity of the matter, this could be varied. You should consider one person who is over 18 as Executor/Trustee of the Estate and this would ordinarily be your Spouse, child/children or Next of Kin. You should appoint a secondary Executor/Trustee as a backup and if you nominate more than one then they will be appointed to act jointly Who would you like to be the Executor/Trustee of your Will? Each other? Yes No Each other? Yes No Other: Other: Alternate executor: Alternate executor: By Lawyers For Lawyers P a g e 2 of 17

3 Further alternate executor: Further alternate executor: 5. TESTAMENTARY GUARDIAN OF MINOR CHILDREN Each other? Yes No Each other? Yes No Other: Other: 6. SPECIFIC BEQUESTS FOR CLIENT # 1 Gifts of personal or sentimental items would be best set out in a letter of wishes which can be retained with the Will. This can be updated regularly with no cost. You should know though that such a letter of wishes would not be binding on the Executors of your Estate so if you consider there is a risk your Executor may not honour your wishes then you should set out your Directions in your last will and testament. Do you wish to direct any specific gifts? Yes No Description: Description: Description: By Lawyers For Lawyers P a g e 3 of 17

4 Description: Description: Right of residency (Life tenancy) A life tenancy is where you set up a Testamentary Trust for your spouse or family member ( Beneficiary ) to be given a Life Tenancy in a property. This would allow the Beneficiary to reside in the property or utilise the funds from the Property (depending on your directions) until such time as they passed away or upon any nominated event whereas the Tenancy would cease such as re marrying etc... The Property would then be dealt with in accordance with the Will and pass either to the Residue of the Estate or as stated. ( Other ). Life Tenancies are a valuable tool where we have blended families and you wish to look after your current spouse but would like children of a former relationship to still benefit from your Estate. We are happy to discuss this further with your consultation.. Beneficiary: Then to: Residue Other 7. SPECIFIC BEQUESTS FOR CLIENT # 2 Gifts of personal or sentimental items would be best set out in a letter of wishes which can be retained with the Will. This can be updated regularly with no cost. You should know though that such a letter of wishes would not be binding on the Executors of your Estate so if you consider there is a risk your Executor may not honour your wishes then you should set out your Directions in your last will and testament. Do you wish to direct any specific gifts? Yes No Description: Description: By Lawyers For Lawyers P a g e 4 of 17

5 Description: Description: Description: Right of residency (Life tenancy) A life tenancy is where you set up a Testamentary Trust for your spouse or family member ( Beneficiary ) to be given a Life Tenancy in a property. This would allow the Beneficiary to reside in the property or utilise the funds from the Property (depending on your directions) until such time as they passed away or upon any nominated event whereas the Tenancy would cease such as re marrying etc... The Property would then be dealt with in accordance with the Will and pass either to the Residue of the Estate or as stated. ( Other ). Life Tenancies are a valuable tool where we have blended families and you wish to look after your current spouse but would like children of a former relationship to still benefit from your Estate. We are happy to discuss this further with your consultation.. Beneficiary: Then to: Residue Other 8 CHILDREN CHILD 1 Male Female CHILD 2 Male Female Family name: Given names: Date of birth: Age: Name of mother: Name of father: Child lives with: Relationship to child: By Lawyers For Lawyers P a g e 5 of 17

6 CHILD 3 Male Female CHILD 4 Male Female Family name: Given names: Date of birth: Age: Name of mother: Name of father: Child lives with: Relationship to child: Attach additional sheets if necessary. Additional sheets used? Yes No Children of previous relationships Full name: Date of birth: Age: Male Female Child lives with: Full name: Date of birth: Age: Male Female Child lives with: Full name: Date of birth: Age: Male Female Child lives with: Attach additional sheets if necessary. Additional sheets used? Yes No By Lawyers For Lawyers P a g e 6 of 17

7 9 BENEFICIARIES OF THE RESIDUE It must be remembered that the provisions of a will do not effect the disposal of joint tenancy property or superannuation accounts. Joint tenancy property can only be dealt with if the joint tenancy is first severed into a tenancy in common. Superannuation needs to be dealt with by binding nomination. If you have a blended family (children to more than one partner) you may wish to ensure that your Estate or some part of your Estate is directed to all your children or your partners children (to protect their interest) and for this reason we would need to specify exactly where your estate is to be divided in certain circumstances. We can discuss this during the initial consultation. In these instances it may be wise to consider one or more testamentary trusts. We also refer to incidental beneficiaries and this is where a beneficiary named in your Will has either predeceased you or not survived you by thirty (30) days then the share of your Estate would then go to any children of theirs that survive you. Each other? Yes No Each other? Yes No Then to/or Then to/or Children at age: Children at age: Including children of spouse or partner Equally between all children Or Including children of spouse or partner Equally between all children Or Incidental beneficiaries to apply Ie: should one of your children predecease you then their share of the Estate would go to their children ie your grandchildren. Incidental beneficiaries to apply Ie: should one of your children predecease you then their share of the Estate would go to their children ie your grandchildren. Then to/or Other Then to/or Other 10 SUPERANNUATION (PLEAE READ EXPLANATION ON BINDING NOMINATIONS BELOW) Super fund name: Super fund name: Details: Details: By Lawyers For Lawyers P a g e 7 of 17

8 Binding nomination required? Yes No Binding nomination required? Yes No Instructed to do so Instructed to do so Client will attend to Client will attend to N.B. A binding nomination must be renewed every three years. Superannuation/Life Insurance Policies If you have any interest in a life insurance policy or superannuation policy you must check with them to see if they have a facility to make a binding death nomination. A person's superannuation may be their best investment and largest asset, and will generally be a substantial asset. However, most people are under the impression that when they pass away, their superannuation will automatically be dealt with by their will. But this is not the case. Upon a person's death, the distribution of their superannuation benefits is not governed by their will, but rather, by the trustee of the superannuation fund, who decides how the distributions are made, subject to the terms of the superannuation trust deed and relevant legislation. Only when (and if) the distributions have been paid to a person's estate, or the legal personal representative of their estate, does a person's will become relevant. The method of distributing superannuation benefits are subject to a wide range of rules including those found in the superannuation legislation as well as the trust deed of the particular superannuation fund. What is a Binding Death Benefit Nomination? Some superannuation funds allow people to make a legally enforceable direction, known as a Binding Death Benefit Nomination (BDBN). In order to ensure that a member's superannuation entitlements are distributed according to their wishes, a member should notify the trustee for their superannuation fund, by providing them with a BDBN. A BDBN is a written notice to the trustee of a member's super fund which sets out who will receive their superannuation entitlements, upon a member's death, and in what proportions. It is important to note that people who wish to use a BDBN must ensure that the BDBN complies with the rules of their super fund, as well (in some cases) with the requirements of the Superannuation Industry (Supervision) Act 1993 (Cth) and Superannuation Industry (Supervision) Regulations 1994 (Cth), to ensure its validity. As different funds may have different rules on how a trustee may be bound by a BDBN, a member should check with their super fund to ensure compliance with the fund's rules and any other legislative requirements. 11 JOINT TENANCIES Any joint tenancies to be severed? Any joint tenancies to be severed? Yes No Yes No If yes, details: If yes, details: 12 FAMILY PROVISION ORDERS A family provision order: The Will of a deceased person can be contested where family members and certain other persons believe that they have not been provided for adequately. Whilst the law recognises a person s right to make a Will that is unfettered, the law does allow a Will to be contested on certain grounds. By Lawyers For Lawyers P a g e 8 of 17

9 Most States have provisions under their respective Succession Acts to ensure that adequate provision is made for members of the family of a deceased person, and certain other persons, from the estate of a deceased person. Should you wish to exclude a family member from your Will, we suggest you write down the reasons for that exclusion and sign that document so it can be produced in any subsequent challenge against your wishes. Is it likely that a family provisions order may be made? Details: Yes No Yes No Details: Below are some reasons that might be appropriate for excluding the potential claimant from the will. Adequate provision has been made for them during my lifetime. Any further provision for them would see the beneficiaries named in my will unfairly disadvantaged. There has been no contact between us for many years and there is no relationship of love and affection between us. My responsibility for their welfare ended many years ago. In these circumstances any gift to them would be contrary to the nature of our relationship. Their financial circumstances are far better than those of the beneficiaries that I have named and I have sought to achieve some equity in the gifts made by me. Their financial circumstances are far better than those of the beneficiaries that I have named and I have sought to achieve some equity in the gifts made by me. They have/will receive substantial gifts from the estate of my former spouse and my will takes this into account in making gifts to the named beneficiaries. Other: 13 ASSETS AND LIABILITIES SCHEDULE Please note: We suggest you consider listing all current assets, including any intellectual property or digital assets or business assets, and type of interest/ownership; and any future assets likely to fall into the Estate. We also suggest you consider and list all current debts, including any unregistered liabilities and PPSR registrations, and how these are to be satisfied. By Lawyers For Lawyers P a g e 9 of 17

10 Please indicate whether you have the following assets: Residential home: Investment properties: Shares: Family/Unit Trusts: Self Managed Super Funds: Overseas investments/property: Joint property: (Please list) By Lawyers For Lawyers P a g e 10 of 17

11 These instructions are a true representation of my last wishes and how I would like my estate distributed in the event of my death. I understand that this document when signed and witnessed will be considered as a temporary will (informal will) until such time as the Solicitors have had the opportunity to prepare and execute my Last Will and Testament. I wish this document to revoke and replace any previous Will that I may have made in the event of my death before my Solicitors have had the opportunity to finalise my new Will. Signature of testator Date: / / Signature of witness Date: / / Date: / / Signature of witness By Lawyers For Lawyers P a g e 11 of 17

12 POWER OF ATTORNEY 14 THE POWER OF ATTORNEY A power of attorney is a formal document giving another person the authority to make legally binding decisions on your behalf. There are two types of power of attorney: general power of attorney and enduring power of attorney. General power of attorney You would use a general power of attorney to appoint someone to make financial decisions on your behalf for a specific period or event, such as if you re going overseas and need someone to sell your house or pay your bills. It s used while you can still make your own decisions and ends once you no longer can (i.e. you lose capacity). Enduring power of attorney You would use an enduring power of attorney to appoint someone to make financial and personal decisions on your behalf if you become unable to make your own decisions, e.g. if you have failing cognitive health or lose capacity to make decisions. The Public Guardian can be appointed to make decisions on your behalf under an enduring power of attorney. Power of attorney to be enduring? Yes No Yes No Does it need to be registered at the land titles office? Yes No Yes No If the attorney is authorised to undertake dealings in land the power must be registered. 15 ATTORNEY/S Attorney/s each other: Yes No Attorney/s each other: Yes No Same as will Same as will Other Other Alternate attorney/s: Same as will Other Alternate attorney/s: Same as will Other Further alternate attorney/s: Same as will Further alternate attorney/s: Same as will By Lawyers For Lawyers P a g e 12 of 17

13 Other Other Will the attorney/s be acting: Will the attorney/s be acting: Jointly Severally Jointly Severally If appointed to act jointly, then, on the death of one of them, the power of attorney continues and the remaining attorney may exercise the power. 16 DECISIONS You may give your attorney power to make decisions about: personal/health matters; Financial matters. Examples of personal/health matters are decisions about where and with whom you live, whether you work or undertake education or training, whether you apply for a licence or permit, day-to-day issues like diet and dress, and whether to consent, refuse to consent or withdraw consent to particular types of health care for you (such as an operation). An example of a financial matter is deciding how your income should be invested. You cannot give your attorney power to make decisions about: special personal matters such as a decision about your will, appointing someone as your attorney, voting at elections, or consenting to adoption or marriage; special health matters, such as donation of body tissue, sterilisation, pregnancy termination, research or experimental health care, or certain psychiatric or other health care as specified in the regulations. Your attorney can consent to the withdrawing or withholding of life-sustaining medical treatment if, for instance, you become terminally ill or go into a state of permanent or persistent unconsciousness. You can give instructions about this type of decision if you make an Advance Health Directive. These instructions will not override any decision or authority under an Advance Health Directive. I would like the Attorney to have a Power of Attorney over: My financial Affairs Personal health matters My financial Affairs Personal health matters I understand that the Power for Personal health matters will take effect once I am incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision. ( Capacity ) I understand that I can nominate when the Power for financial matters takes effect: I wish that to be: By Lawyers For Lawyers P a g e 13 of 17

14 Immediately In the event that I lose Capacity On this occasion: Immediately In the event that I lose Capacity On this occasion: 17 LIMITATIONS OR NOTES By Lawyers For Lawyers P a g e 14 of 17

15 ADVANCED HEALTH DIRECTIVE 18 ADVANCED HEALTH DIRECTIVE An advance health directive is a formal way of giving instructions for your future health care, and comes into effect only if you are unable to make your own decisions. What it covers An Advance Health Directive allows you to plan what medical treatment or health care you would like in the event that you cannot make decisions for yourself. It also enables you to appoint an attorney for health and personal matters if you want. You can use your directive to express your wishes in a general way, such as stating that you would want to receive all available treatment. You can include relevant information about yourself that health professionals should know, such as: special health conditions allergies to medications religious, spiritual or cultural beliefs that could affect your care. Specific instructions You are able to give specific instructions about certain medical treatments. For instance, you might feel strongly about whether or not you want to receive life-sustaining measures to prolong your life. These include: cardio-pulmonary resuscitation, to keep your heart beating assisted ventilation, to keep you breathing if your lungs stop working artificial nutrition and hydration. You can use your directive to outline your views about the quality of life that would be acceptable to you. For instance, you might decide to specify that you would like life-sustaining measures withheld or withdrawn in certain situations, such as if you were to have: a terminal illness for which there is no known cure nor chance of you recovering severe and irreversible brain damage so that you are unable to communicate an illness or injury so severe that there is no reasonable prospect that you will recover. An Advanced Health Directive is a formal document that requires specific advice from both your Solicitor and your Doctor. If you wish to instruct us to prepare this document we would need to organize an appointment with the Solicitor and take specific instructions. Please contact the office and make such an appointment with the writer. Do you wish us to send you an Advanced health directive form for consideration? Yes No Yes No By Lawyers For Lawyers P a g e 15 of 17

16 19 AUTHORITY TO RETAIN Would you like us to retain in our safe? Would you like us to retain in our safe? Your Will: Yes No Not sure Your Will: Yes No Not sure Your POA: Yes No Not sure Your POA: Yes No Not sure Your AHD Yes No Not sure Your AHD Yes No Not sure Documents are retained for safe keeping at no additional fees. Documents are retained for safe keeping at no additional fees. By Lawyers For Lawyers P a g e 16 of 17

17 AUTHORITY TO RELEASE To: Dear Sir: You are hereby authorised and directed to forward to at the original wills, powers of attorney, advance health directives, certificates of title and any other documents that you may hold on my/our behalf. Signature Date: / / Signature Date: / / By Lawyers For Lawyers P a g e 17 of 17