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Why should I make an Enduring Power of Attorney

Why should I make an Enduring Power of Attorney

By signing an Enduring Power of Attorney you appoint one or more persons who you rely upon and trust to look after your assets and to speak to doctors and health practitioners when you are not
well enough to do so. This may follow an accident or a medical procedure.

Imagine you are taken to hospital and you are not responsive. The hospital staff will speak to your appointed Attorney, your mother, father, son or daughter and discuss what can be done for you and what you had told your Attorney to do in such an event.

If there is not an Attorney appointed then a family member will have to go to the Queensland Civil and Administrative Tribunal and explain what is the problem and ask to be appointed to look after you. In that event, there will be delays of many weeks, and of course, costs.

Making a Will

By making your Will you appoint your choice of Personal Representative to carry out your wishes after you die. That person is called your Executor and who holds all of your property as Trustee for your named beneficiaries.

In your Will, you set out what level of provision you will give to your beneficiaries. You may decide one is more deserving than another.

If the Will is carefully prepared, signed and dated you can expect your Will to be carried out, and if necessary, supported by the Court.

If you do not have a Will you are said to die Intestate. In that event the State Laws will determine who your Executor will be and who is to receive your estate. This will add to the costs of finalising your estate.

Retirement Homes & Aged Care Facilities

You may be thinking it’s time for you or someone you love to move into a Retirement Village or Aged Care Facility. We can assist you and advise you in relation to the process and steps to be taken depending on whether you are considering a:-

  1. Retirement Village;
  2. Residential Aged Care Facility;
  3. Manufactured Home; or
  4. Serviced Apartment.

The type of accommodation you choose will depend on many things including your assets, income, health, social needs, lifestyle and location.

The advice we provide

Each type of accommodation has its own set of forms and disclosure which must be provided to you before you enter into any contract. Once you have made your decision as to the type of accommodation you prefer, we can review these documents and advise you in relation to such matters as the initial payment you must make, the ongoing fees you will have to pay, the conditions attaching to your right to live in the accommodation, what will happen to any Refundable Accommodation Deposit or Ingoing Contribution when you leave the accommodation or upon your death.

Depending on the type of accommodation you may purchase a right to live in a Residential Aged Care Facility and pay a Refundable Accommodation Deposit and/or a Daily Accommodation Payment, or enter into a lease to live in a Serviced Apartment and pay an Ingoing Contribution, or purchase a home in a Retirement Village and pay an Ingoing Contribution.

The main difference between an Ingoing Contribution and a Refundable Accommodation Deposit is that an Ingoing Contribution is not returned in full to you when you vacate or upon your passing whereas a Refundable Accommodation Deposit is fully refunded to you when you vacate or to your estate upon your passing.

The terms of the lease or licence which the accommodation owner or operator requires you to sign before you take up occupancy may be of concern to you. A usual term of a lease or licence is that you must vacate if your health deteriorates and the accommodation owner or operator is not satisfied that you are safe in the accommodation.

When you are ready to sign the relevant forms, we can witness your execution of the forms and return the forms to the accommodation operator or their solicitor. We will then liaise with the accommodation operator or their solicitor to ensure a smooth settlement.

Need to sell your own home?

If you need to sell your own home in order to raise funds we are able to provide you with advice on that aspect and provide you with our conveyancing services. We will then keep the accommodation operator or their solicitor informed as to the progress of your sale. Once you are ready to complete settlement of the sale of your home then we can arrange for part of your sale proceeds to be paid to the accommodation operator ensuring that you may move into your accommodation on the same day.

We are here to help

If you are thinking it is time for you or a loved one to move into a Retirement Village or Aged Care Facility, please call our office on 3267 8066 to make an appointment.

Contested Wills

Why are Wills contested?

When it comes to making your Will people who are single, and without children or financial dependants, are free to do what they like with their estate, that is, they may leave their estate as  they wish.

For those with a spouse, partner, children, or step-children you have a responsibility to consider the needs of your prospective beneficiaries and then make adequate provision for each of them.

What you need to consider

In most instances concerning children including step-children, it is sufficient to leave your estate in equal shares however that will not be so when one or more children is in receipt of a Government pension or suffers a disability which affects their ability to earn income and support themselves.

Further, an adult child who is living with a parent when the parent dies may also require careful consideration when that parent makes his or her Will as such an adult child may have a greater claim on the estate than his or her siblings. It may be that adequate provision requires the child having the right to continue to live in the family home after your death for a period of time.

In some circumstances it may be prudent to leave an adult child, a spouse or partner, the right to live in the family home for the rest of his or her life (known as a life tenant) and after his or her death the family home may be sold and then the sale proceeds distributed to the remainder beneficiaries.

Where such provision is made there needs to be clear instructions to the Executor as to who will meet the costs of insuring the home and maintaining the home during the life tenancy. Sometimes a separate fund is put aside by the Will-maker for such expenses.

Further, adequate provision might require that the life tenant, being a partner or spouse, has the power to sell the home and downsize or use all or part of the proceeds from the sale to pay a Refundable Accommodation Deposit if entering an aged care facility. In those instances the remainder beneficiaries of the estate may receive the balance of the Refundable Accommodation Deposit when the life tenant passes away.

When making a Will, if you do not wish to make adequate provision for a child you will need to speak to your solicitor as simply leaving a nominal amount to a child will open the door for your Will to be contested.

When a beneficiary is not happy with their share from their parent’s estate they will often seek to show the Court that mum or dad did not have all of their faculties when they “cut me out of the Will”.

We advise our clients to attend upon their Doctor and obtain a short letter to the effect that the Doctor is satisfied that the Will-maker did know and understand what was required before signing their Will.

Probate of the Will

Depending on the nature of the estate Probate of the last Will may be required by the Executor. The Supreme Court grants Probate of a Will to the Executor named in the Will once the Court is satisfied that the Will was properly made and is the last Will of the deceased.

The Court can require the Executor to explain why there are marks on a Will, or why a witness signed with a different colour pen, or if the Will-maker died of Dementia (or related illness) the Executor will need to provide proof that the Dementia did not affect the capacity of the Will-maker to make their Will.

If the Court is satisfied then Probate of the Will is granted to the Executor to carry out the terms of the Will. If the Court cannot be satisfied then the Court will look at earlier Wills made by the Testator, and if there are none, then the Testator is deemed to have died without a Will, and in that event, the State Laws determine what happens to your estate.

How we can help

Some people prepare their own Will or buy a Will-kit from the shop and try to complete the Will themselves. Giving instructions to your lawyer for the preparation of your Will is not expensive.

The reason why there are increasing instances of children, step-children, spouses or partners contesting Wills is because of the claim that what he or she received from the estate is not adequate to meet their needs.

As lawyers we are able to advise you on the Court’s approach to contested Wills and what may be the most prudent course of action in your circumstances. If you are thinking it is time to make a Will, please call our office on 3267 8066 to make an appointment.

Breakdown of the Family and Children

When parents split up the paramount concern is the welfare of the children

When a relationship breaks down and the parties have children under the age of 18 years the parties are provided with free, or reduced cost, assistance by a Federal Government Family Relationship Centre. The Family Relationship Centre will assist the parties to reach an agreement for the welfare and care of their children. This also means assistance in deciding how much time the child or children will reside overnight with each parent.

The time a child spends with his or her parents is taken into account when the Department of Human Services calculates the monthly child maintenance payments of each parent.

What if the Family Relationship Centre can’t help?

Sometimes the Family Relationship Centre is unable to bring the parents to an agreement. An experienced family lawyer will then seek to engage a private, child-focused counsellor to interview the parties, the children, school teachers and other relevant persons including medical practitioners.

The counsellor will then provide a written report for the parties and which report will set out the recommended parenting plan for the parents to follow.

By obtaining such a report, which is called a Family Report, the parties may be saved from the significant cost of a Judge making a decision, and more importantly, save the impact of being involved in a Court trial.

What can you do following a breakup?

Parents will be wise to enrol in a parenting course which will help them understand and react appropriately to the children following the breakup of their family.

It is important to listen to the wishes of the children, and bearing that in mind, not all children handle a week about arrangement as well as other children. There is no legal requirement that they do so. The Court recognises that the child or children spend significant time with both parents.

With a focus on the future welfare of the children, it is our role as solicitors to help you navigate towards a resolution with the other parent, with as little dispute as possible.
As lawyers, we will advise you on what you can and should do depending on your individual circumstances. If you need advice, please call our office on 3267 8066 to make an appointment.