END OF LIFE LEGAL ISSUES. Sean Behringer Senior Associate Maurice Blackburn Lawyers

Transcription

1 END OF LIFE LEGAL ISSUES Sean Behringer Senior Associate Maurice Blackburn Lawyers

2 TOPICS COVERED Wills Superannuation Planning Power of Attorney Enduring guardianship Tissue and organ donation forms The advice provided today is general only. You should obtain specific advice particular to your own circumstances. 2

3 WHAT IS A WILL? A Will is a legal document that determines: Who will make the key decisions for your estate: executor/executrix Who will be responsible for any minor children that you leave behind: testamentary guardian Who will receive the benefit of the assets that you leave behind: beneficiaries 3

4 WHAT IS COVERED? There are many misconceptions about what is and isn t covered by the terms of a Will. Assets held in testator s own sole name (bank accounts, real estate) Personal effects: household goods, jewellery WHAT IS NOT COVERED? Usually, superannuation death benefits, including life insurance held in superannuation Property held jointly such as joint tenancies or money held in joint accounts Interests in life insurance policies, though these may be payable to the nominated beneficiary Interests in any family trusts 4

5 LEGAL REQUIREMENTS OF A WILL To be legally valid, a Will must be: In writing Signed on each page Easily readable in plain language Witnessed by two independent witnesses (not a beneficiary) Testator must be: over 18, with capacity to enter in to the document 5

6 NO WILL What if there is no Will in place? Intestacy provisions apply: set out in legislation Usually will pass to spouse and/or children Otherwise, Next of Kin (e.g. parents, siblings) 6

7 SUPERANNUATION PLANNING Superannuation death benefits, including life insurance, are not automatically controlled by your Will. A binding death benefit nomination (BDBN) = a Will for your superannuation Contact your fund or financial advisor to assist 7

8 SUPERANNUATION BENEFITS There are three kinds of insurance that are commonly held on super accounts: - Income Protection - Provides a monthly benefit for the period that you are off work. - Total and Permanent Disability (TPD) - Provides a large lump sum benefit for a person who has been medically certified as being unable to return to work - Death Cover - Provides a large lump sum benefit to the family members of an account holder who has died. 8

9 POWERS OF ATTORNEY A document where a person (the principal) appoints another person (the attorney) to act on their behalf to make certain types of decisions. Enduring Power of Attorney Power of Attorney An enduring power of attorney authorises the attorney s authority to continue even where the principal has lost capacity to make decisions. It endures through the loss of capacity. A general power of attorney only authorises the attorney to make decisions on a persons behalf where the principal still has capacity eg. they are overseas. 9

10 WHAT CAN THE ATTORNEY DO? Make financial decisions: 1. Access your bank accounts 2. Spend your money 3. Sell property 4. Draw down superannuation 5. Enter into legal documents (excluding a will, Power of Attorney or entry into marriage) 6. Give gifts on your behalf 7. Spend money on the living and medical expenses on certain persons including the attorney Limitations can be placed in the document preventing the attorney from doing certain things eg. the attorney may not sell my home. 10

11 WHEN DOES THE ATTORNEYS AUTHORITY COMMENCE: The authority can commence at any time the principal chooses at the time of signing the document. WHEN DOES THE ATTORNEYS AUTHORITY CEASE: The enduring power of attorney can be ceased by completing a revocation form. However, if you do not have mental capacity you cannot revoke. 11

12 FORMALITIES There is a form prescribed by law for an enduring power of attorney. Signatures must be witnessed by a prescribed person lawyer, registrar of the local court, NSW Trustee & Guardian employee. BE CAREFUL It is a very significant power to place in the hands of someone else. They must be someone you can trust. You can only revoke the appointment if you have the capacity to do so. 12

13 ENDURING GUARDIAN Different to an Enduring Power of Attorney. They are separate but compliment each other. An Enduring Guardian is someone who makes lifestyle, health and medical decisions for you when you are not capable of making such decisions. Includes decisions about: Where you live; What services are provided to you at home; and What medical treatment you receive. 13

14 HOW IS IT COMMENCED Specific form Limits and directions for the guardian can be included within this form. Signature must be witnessed by a Lawyer or Registrar of the Local Court 14

15 ADVANCED CARE DIRECTIVES Sometimes referred to as a Living Will Sets out a clear statement of your directions including your wishes and values that need to be considered before medical treatment decisions. This directive can be attached to your Enduring Guardianship Appointment or they can be separate. If they are separate then you can make or change your direction as your circumstances change. Doctors and health care professionals will look at your directive when you are unable to make or communicate decisions about your health and treatment. This is not a legal directive. There is no advanced care planning legislation in NSW but Supreme Court has said that valid directives must be followed. Information on the NSW Department of Health website: 15

16 ORGAN AND TISSUE DONATION In Australia you can donate organs: Heart, lungs, liver, kidneys and pancreas. You can also donate tissue: heart valves, corneal and eye tissue, bone and related muscolosketal tissue and skin tissue. You can register your details on the Australian Organ Donor Register: Decisions need to be discussed with your family. Donation wont proceed without your family s consent. 16

17 Thank you mauriceblackburn.com.au