Will & Estates
10+ years of experience in drafting Wills, Power of Attorney and Enduring Guardianship documents across Australia.
Helping you plan for the future
Planning for the future is an important legal task. We can assist you by drafting, refreshing or amending your will and advising you of your rights and legal entitlements. You may also want to plan just in case you may not be able to manage your own affairs by having us prepare Power of Attorney and/or Enduring Guardianship documents.
Our additional services include:
| Wills | Powers of Attorney | Enduring Guardianship |
|---|---|---|
| A document that specifies the method to be applied in the management and distribution of your property after death. Why do i need a will? |
A written authorisation to act on another's behalf in specified or all legal or financial matters. Why have a power of attorney? |
A document which authorises a person to make personal, lifestyle and treatment decisions on your behalf should you ever become incapacitated. Why have an enduring guardianship? |
Why do I need a will?
If you die without a will, your property (“estate”) will be distributed to your relatives according to a legal formula and possibly not the way you would prefer. Further, by not having a will it can also cause complications, delays and extra costs for those you leave behind. If you die without any relatives closer than a first cousin, your assets will go to the government.
How do I make a will?
Witness:
A will must be signed and witnessed properly to be legally valid.
Be clear:
Ensure your intentions are expressed clearly to reduce the chance of any argument. Whilst there are do-it-yourself kits, it is safer to get a solicitor to do your will to ensure it is done properly.
Over 18:
Anyone over 18 can make a will so long as they have mental capacity.
Price:
The price of a will varies depending on the complexity however generally it is an inexpensive document.
Executor:
Appoint a person who will be responsible for dealing with your estate after you die. This person should be trusted to take on this responsibility.
Storage:
You can keep your will in a safety deposit box in a bank or in a safe place at home. Ensure you keep a copy and give one to the executor or tell them where the original is stored.
Changes:
You can change your will at any time by preparing a new one or making a codicil (a separate document stating your change). This must be signed and witnessed in the same way as making a will.
Disputes:
It is possible that someone may contest your will within 12 months of your death if they believe they were not properly provided for in the will.
A person disputing the will would have to show that:
- It was not your last will (another one was made at a later date)
- It was not signed correctly
- You did not have mental capacity at the time of making the will
- There were changes to the will after it was signed
- You were pressured or forced into making the will
Why have a power of attorney?
You can appoint someone to act on your behalf for property and financial matters. You can make a general power of attorney for a specific period of time e.g. if you plan to travel overseas. This stops if you lose capacity to make your own decisions. An enduring power of attorney will continue even after you have lost capacity.
What will happen if I haven’t made an enduring power of attorney?
If you lose capacity and do not have an enduring power of attorney, a person may need to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court to have a financial manager appointed for you. This person will then be able to manage or make decisions about your property and finances. This person may not be the person you would have chosen.
How do I make a power of attorney?
Witness:
A power of attorney must be witnessed by two adult witnesses (independent of the document), one of who must be a person authorised to witness the signing of a statutory declaration. Both witnesses must be present when the person making the Power of Attorney signs the document.
Attorney:
The person you appoint as your attorney must sign the form to accept their appointment before they can act as attorney. You should choose someone who is trustworthy and willing to take on this role. You can appoint more than one person so they can act either jointly or individually.
Over 18:
Anyone over 18 can make a power of attorney so long as they have mental capacity.
Powers:
You can decide how much power or authority to give your attorney. For example, if you are going on a holiday and require someone to sign documents to sell your house then you can limit their power to just this act.
Changes:
You can cancel your power of attorney at any time so long as you have mental capacity. You must let your attorney know that you are cancelling the power of attorney.
Registration:
You must register the power of attorney with the Land and Property Information if your attorney needs to deal with your real estate (e.g. sell, mortgage or lease). A fee is required for registration. Most people still register the document so that it is on record as a public document and is safe from loss or destruction.
Different States:
Each state and territory has its own laws on enduring powers of attorney.
Storage:
You can keep your power of attorney in a safety deposit box in a bank or in a safe place at home. Ensure you keep a copy and give a certified copy to the attorney. Your attorney should know where to find the original form as they may need to produce it as evidence of the document.
Why have an enduring guardian?
An enduring guardian is someone you appoint to make lifestyle, health and medical decisions for you when you are not capable of doing this for yourself. Your enduring guardian may make decisions such as where you live, what services are provided to you at home and what medical treatment you receive.
What will happen if I haven’t made an enduring guardian?
If you do not have an enduring guardianship document and you lose capacity to make personal and lifestyle decisions, a guardian may be appointed by a Tribunal.
The appointed guardian might be a member of your family, a friend, or an independent guardian from a Government Department.
How do I make an enduring guardian?
Guardian:
Make sure the person you chose to be your guardian is willing to take on this responsibility. Explain to them their role, so that they understand your wishes and any conditions associated with any function.
You may appoint a number of people jointly or severally to be your guardian. This means they all have the same functions or decision making. In making decisions on your behalf they must always agree and act together if jointly appointed. If appointed severally, each guardian can make decisions without needing to agree and act together.
You may also appoint an alternative guardian, where they only have authority to act if the original guardian dies, resigns or becomes incapacitated.
Restrictive:
You can give your guardian directions about how to exercise the decision-making functions that you give them e.g. for them to consult with a specific family member when making a decision.
You can also set limits to your enduring guardian on the form by crossing out some of the functions that you do not wish them to have. Further your guardian cannot consent to medical or dental treatment on your behalf when you object to that treatment.
Witness:
If you wish to appoint an enduring guardian, you must sign a legal form of appointment. The person or people you appoint need to sign the same form in front of an eligible witness to show they understand their role. Only a solicitor, Registrar of the Local Court, overseas legal practitioner, or approved officer from NSW Trustee & Guardian may witness the signatures. The witness cannot be the same person you appoint as your enduring guardian.
Over 18:
Anyone over 18 can make a power of attorney so long as they have mental capacity.
Storage:
You can keep your enduring guardian form in a safety deposit box in a bank or in a safe place at home. Ensure you keep a copy and give a certified copy to your guardian. Your guardian should know where to find the original form as they need to produce evidence of the appointment.