Estate Planning
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Who can make a will?
In order to make a will in NSW, you must be over 18.
A will made by a person under the age of 18 is invalid unless it is made in contemplation of marriage that takes place, the minor is married or the court has approved the will under s 16 of the Succession Act 2006 (NSW).
What are the formal requirements for ensuring a will is valid?
In order for your will to be valid, it needs to comply with the following requirements:
be in writing (it can be handwritten, typed or printed)
be signed by the person making the will, and witnessed by two or more witnesses (beneficiaries should not be witnesses).
You must have also have something called ‘testamentary capacity’.
What does this mean?
you know the legal effect of a will
you are aware of the extent of your assets
you are aware of the people who would normally be expected to benefit from your estate
you are not prevented by reason of mental illness or mental disease from a reaching a rational decision as to who will benefit from your will.
What should a will contain?
Your will should contain the following:
the names of the individuals, trusts and charities you want to benefit from your estate
instructions on how you would like your assets divided between beneficiaries
any specific instructions on how you would like your life to be celebrated.
If you wish to make a will, what are the key things you need to consider?
Before you make a will, you should consider the following:
What do you own (property and assets)?
Who do you want to leave your estate to?
Who will be the executor of your will?
Do you want to leave directions about the payment of debts and funeral expenses?
Should you set up a trust or leave gifts directly?
Do you have any concerns about who will be a guardian for your children?
What sort of burial or cremation arrangements do you want?
How often should your will be updated?
The idea of a will is that it expresses your wishes at a particular point in time. It is advisable regularly to review your will as your circumstances change, so that it accurately reflects your current wishes.
Circumstances in which you may wish to update your will include:
marriage
starting a de facto relationship
the arrival of children or grandchildren into your family
separation or divorce
if your children marry or divorce and, as a result, have extended families
if a beneficiary dies (when preparing your will, it may be wise to substitute beneficiaries)
the death or a spouse or partner
the value of legacies diminishing over time (for example, you may have left a sum of money that seemed significant when you last made your will but it may not be worth so much today)
if you retire, because this often leads to people restructuring their affairs
when you buy or sell assets (sometimes people like to leave specific assets to a specific beneficiary, but if you don’t update your will, some beneficiaries may receive nothing and others receive more than was intended in your will).
What does an executor do?
The role of an executor is to carry out the wishes of a person after they die. This involves managing the estate within the terms of the will, as well as protecting the assets of the estate.
An executor is responsible for:
finding the will
arranging for the disposal of the body
getting the death certificate from the Registry of Births, Deaths and Marriages (often the funeral director can help with this)
ascertaining the deceased’s assets and liabilities
assessing the value of the deceased’s assets
obtaining probate, if required
paying the deceased’s debts, income tax, duties and funeral expenses
distributing the assets according to the terms of the will.
Who should you appoint as your executor?
The most important thing about appointing an executor is appointing someone you trust.
In addition, you should be aware that there is a lot of responsibility and work involved in being an executor . It may even require an understanding of legal, financial and taxation issues.
Therefore, before you appoint an executor, you should consider the following:
Does the person you wish to appoint have the time and requisite skills to carry out the role of executor?
Would taking on the role of executor cause them undue stress?
Do they live overseas or interstate (because this can make things more complicated from an administrative point of view)?
Usually, a major beneficiary is appointed unless the beneficiary is under the age of 18 or mentally incapable of acting.
It may be a good idea to name an alternative executor to take over, in case your first executor dies before you or shortly afterwards.
If you don’t have a close relative or friend to name as executor, you may consider appointing:
a lawye
a private trustee company.
If you appoint an executor, are they obliged to accept the appointment?
No, the person you appoint as executor has no obligation to accept the appointment.
They may be unwilling to undertake the considerable duties, responsibilities and liabilities that the role entails.
What happens if my executor renounces their appointment?
The substitute or alternative executor will then step in to act.
In NSW, if no alternative is named in the will, the Succession Act 2006 provides for who will manage the estate (usually the major beneficiary)
Therefore, it is always a good idea to talk to your proposed executor to see if they are willing to accept the appointment.
Does an executor get paid?
You may wish to include a provision in your will that your executor is financially compensated for the time involved in carrying out their responsibilities.
An executor may also apply to the court for payment from the estate for the work they have done.
In cases where a trustee is appointed under a will, what does that person do?
In the case of a trustee appointed under the terms of a will, that person looks after ongoing bequests to family and friends for a specific time stated in the will.
Do you have the right to see a will before probate is granted?
In, NSW, under the Succession Act 2006, certain people may be eligible to see the will before probate is granted.
Those people who are eligible include:
any person named or referred to in the will, whether as a beneficiary or not
any person named or referred to in an earlier will as a beneficiary
the surviving spouse, de facto partner (of the same or opposite sex) or the children of the deceased person
a parent or guardian of the deceased person
any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate
any person (including a creditor) who may have a claim against the estate of the deceased person.
How can you change or revoke your will?
A will remains in force until the testator formally changes or revokes it.
The only situation where a will is automatically revoked is marriage, unless the will was made in contemplation of marriage.
A divorce will not revoke the whole will. However it will revoke:
a gift to your former spouse
the appointment of your former spouse as an executor, trustee or guardian, unless you express a contrary intention in your will.
However, a divorced person should make a new will, rather than relying on the partial revocation provisions.
If you need to change a will, you can do so by adding a codicil. This is an addition to the earlier will and is located in a separate document. A codicil has to meet the same formal requirements as a will. In a lot of cases, it may be easier to make a new will altogether.
What happens if you are living in a de facto or same sex relationship and you die without a will?
When a person who is in a legally recognised relationship dies, their partner has certain rights.
Since 1999, lesbians and gay men in relationships have the same rights as couples in heterosexual de facto relationships when it comes to state-based ones such as inheritance, funerals and other death-related rights.
This means that a surviving partner in a heterosexual, gay or lesbian relationship can:
make decisions about organ donation and post-mortem examinations
request a coroner’s inquest
if there is no will and no executor, make decisions about funeral arrangements.
In cases where there is a valid will
Generally, the property and assets are distributed according to the person’s wishes as set out in the will, unless a family provision applies.
In cases where there is no will
If there is no will and the person dies intestate, the property is distributed as per the formula set out in the Succession Act 2006 .
Can your will be contested?
Although you are entitled to leave your assets to anyone you wish, in some circumstances, in NSW and other states, relatives and friends who believe they have not been sufficiently provided for are entitled to contest your will.
In NSW, under the Succession Act 2006, the following people can contest your will:
a spouse
children
a de facto partner
a former spouse
grandchildren
people who have lived in the same house as you if they can show they have been dependent on you.
Anyone contesting a will needs to convince the court that they should receive a share or greater share of your estate, based on their ‘need’.
If you have a complicated family structure, such as a second marriage or blended family, the likelihood of your will being contested may be increased.
Where should you keep your will?
It is important to realise that a will can only be used if it can be found when it’s required. You may have heard of cases where someone died and family and friends were aware that a will existed but were unable to locate it.
Therefore, it is important to store your will in a safe place such as:
with a lawyer
in a bank
with a trustee company.
You should also keep a copy with your personal papers and a note stating where the original is kept.
Ideally, you should keep a list of your assets with your will, such as:
bank accounts
investments
insurance policies
title deeds.
You may also want to leave a list of people and organisations that should be notified of your death, such as:
Centrelink
Department of Veterans Affairs
Superannuation funds
Australian Taxation Office.
Having this information organised will make your executor’s task much easier.
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What is probate?
Probate is an order from the Supreme Court stating that a will is valid and the executor/s have the right to collect and administer the estate in accordance with the terms of the will.
When is probate necessary?
Probate will be necessary if the deceased died owning real estate, except if the real estate is owned as joint tenants.
Generally, when the estate is very small (worth less than $15,000) and uncomplicated, or when all assets are held as joint tenancies, there is no need to obtain probate or letters of administration.
What does ‘formal administration of an estate’ mean?
In NSW, if there is a will and an executor, formal administration involves the executor applying for a grant of probate from the Equity Division of the Supreme Court of NSW.
If you have been appointed as an executor, do you need to retain a solicitor to assist with probate?
Technically, you don’t need a solicitor to assist with the application for the grant of probate.
However, the process of applying for a grant of probate is quite complicated, and you may feel more comfortable retaining a solicitor to manage things, depending on:
how much time you have available
your level of expertise and confidence in dealing with other people’s money
your experience with the legal system.
Alternatively, you may wish to seek the assistance of a solicitor for certain aspects of the probate application, such as:
ensuring that the notice of intended application for probate published in the newspaper is in the correct form
preparing the affidavit of the executor and other court documents.
Depending on your relationship with the deceased, you may be grieving and feeling overwhelmed by the thought of dealing with such fiddly administrative tasks.
Retaining a solicitor to assist with probate may take a lot of the hassles out of the process.
If you do decide to arrange for a solicitor to administer the estate on your behalf, the costs (provided they are reasonable) will be met from the estate.
How do Monardo Solicitors approach probate?
We at Monardo Solicitors are very experienced in guiding clients through the probate process.
So, we’ve designed a form, which you can fill in quickly and easily.
We then use the information you’ve provided to begin the process of preparing the application for the grant of probate.
How does our probate form work?
Step One: You fill in the probate form
You fill in the probate form online and send it to us via the reply button at the bottom of the page.
Step Two: We get back to you quickly, with a quote for how much it will cost to manage the application for the grant of probate process for you
We will review the information you’ve provided, and give you a quote for managing the application for the grant of probate process.
If we need any additional information, we will get in touch with you.
Step Three: We prepare and lodge the application for the grant of probate
If you are happy with our quote and instruct us to go ahead, we commence the process of preparing and lodging the application for the grant of probate.
Step Four: Once probate has been granted, we can guide you through the next stage in the process of administering the estate
If you wish, we can also guide you through the process of administering the estate after probate has been granted.
This involves:
paying the deceased’s debts
paying income tax, duties and funeral expenses.
distributing the assets according to the terms of the will.
Frequently Asked Questions
What is the probate process?
Step One: Advertising the intention to apply
Fourteen days before applying for a grant of probate, the executor needs to take out a newspaper advertisement indicating the intention to lodge the application.
The main objective here is to find out whether anyone is holding a will made by the deceased that is dated after the date of the will that has been advertised.
Step Two: Making the application for the grant of probate
In order to apply for the grant of probate, the executor (or their lawyer) needs to file certain documents with the court, including:
a summons (signed by the executor or their lawyer)
the original will
an affidavit of the executor, stating that the executor will administer the estate according to the law and there is no reason by law the executor should not be granted probate of the will.
The affidavit should also attach:
a statement as to whether the deceased person left any other document attempting to set out their testamentary intentions
the death certificate (which can be obtained from the Registry of Births, Deaths and Marriages)
a copy of the newspaper advertisement stating the intention to apply for probate
a list of the person’s assets and liabilities.
Other documents may be required if it is a complex application.
You will also need to pay the court a filing fee for lodging the application for grant of probate.
Step Three: The court grants probate
Where there is no dispute about the will, the court grants probate in common form.
If there is a dispute as to whether or not the will is the last will of the deceased and a court case ensures, the court makes a grant of probate in solemn form.
What happens with probate if there is a will but no executor?
If the will does not appoint an executor, or the sole executor dies before the deceased or renounces probate of the will, an application must be made to the Equity Division of the Supreme Court for a grant of letters of administration with the will annexed.
What does this mean?
The court appoints an administrator for the estate.
Who makes the application for a grant of letters of administration?
Usually, the application for the grant of letters of administration is made by the beneficiary to the largest share of the estate. That person then becomes the administrator.
What does the administrator do?
The administrator distributes the estate in accordance with the terms of the will.
What happens with probate if there is no will?
In cases where there is no will, the court grants letters of administration and appoints an administrator to deal with the estate.
The will is then distributed in accordance with the rules of intestacy.
What happens after probate has been granted by the court?
After probate has been granted, the next stage of administering the estate can begin. This involves the executor collecting all the assets and paying any outstanding debts.
Before distributing the assets, the executor must make sure all debts have been cleared. This includes:
funeral expenses
taxes
debts to any lending institutions or private creditors
any other outstanding administrative or legal expenses.
As mentioned above, the law requires the executor to insert an advertisement before probate can be granted.
Once probate has been granted, a notice of intended distribution may be published online. This isn’t mandatory, but is recommended in most circumstances, unless the executor is the sole beneficiary. The purpose of this advertisement is to allow the executor or administrator to make distributions from the estate without liability.
Once the deceased’s assets have been collected and any outstanding debts cleared, you can begin to distribute the proceeds or transfer specific assets according to the instructions of the will or intestacy rules.
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What is a testamentary trust?
Generally, a trust describes an ownership structure where the assets of a trust are owned by one person or organisation (the trustee) but held for the benefit of other individuals or organisations (the beneficiaries).
Trusts are created in a wide range of situations. The can be a useful structure for both families and businesses.
For example, a lot of people have family trusts (also known as an inter vivos trusts). These are created by a deed and commence during your lifetime.
In contrast, a testamentary trust is created in and by your will. It does not come into effect until your death.
A testamentary trust may be created under your will, using:
specified assets
a designated portion of your estate
the entire remaining balance of your estate.
Testamentary trusts take many forms, including:
a life tenancy
a life interest estate
a trust for minors
a trust for protected beneficiaries
charitable trusts.
What are some of the advantages of setting up a testamentary trust?
A testamentary trust enables you to control when and how your beneficiaries will receive their inheritance.
It is designed to provide maximum flexibility and allow for tax effective distribution of capital and income, as well as providing possible protection for your beneficiaries from third parties such as creditors.
For example, you may wish to set up a life-interest benefit for your beneficiaries. This allows a person to benefit from an asset for the rest of their life, but without ultimately inheriting it. A beneficiary could live in a property, receive rental income from a property or earn the return on invested funds for the rest of their life. After the beneficiary’s death, you could ensure the trust assets could pass to other family members, charities, or whatever you specify in your will.
A testamentary trust can offer a number of other advantages compared with ownership passing directly to a beneficiary:
It can offer wealth protection if they become bankrupt or go through a marriage breakdown (because it legally separates the inherited assets from the personal assets of the beneficiaries).
When an asset passes directly to a spouse, you cannot ensure that your children are protected, especially if your spouse remarries and has other children, and a testamentary trust offers protection against this.
You may not want to give a child money at an early age and a testamentary trust can help you control when they get access to a particular asset.
It means you can stagger the gifting of assets over time or tie the release of assets to particular events or uses.
It enables the trustee to control the distribution of income from year to year, which can be adjusted to take advantage of the lower marginal tax rates of one or more of the beneficiaries.
It can be used to provide flexibility in relation to capital gains tax and stamp duty.
It can be used to reduce tax on your superannuation.
What are the different types of testamentary trusts?
There are two types of testamentary trusts:
Discretionary testamentary trusts
Protective testamentary trusts
What is a discretionary testamentary trust?
A discretionary testamentary trust is a trust where the beneficiary has the option to take all or part of their inheritance via a testamentary trust. The primary beneficiary has the power to remove and appoint the trustee, and can appoint themselves to manage their inheritance inside the trust.
What is a protective testamentary trust?
A protective testamentary trust is a trust where the beneficiary must take their inheritance via the trust and does not have the option to appoint or remove trustees. It can be useful in cases where the beneficiary is facing bankruptcy; has matrimonial problems; or has an intellectual disability, meaning they are not able to manage their own finances.
How does Monardo Solicitors approach testamentary trusts?
At Monardo Solicitors, we like to make sure that anyone who is interested in setting up a testamentary trust is aware of both the advantages and disadvantages. Quite often, our clients ask us to estate planning package that meets all their needs. In some cases, this involves including a testamentary trust in a will.
That is why, with clients who are looking to set up a testamentary trust, we like to sit down and talk to them about their situation and explore their options in detail.
If you decide to go ahead, our experienced wills and estates lawyers can prepare you a will that contains a testamentary trust that achieves your objectives.
Frequently Asked Questions
Who can you appoint as trustee of a testamentary trust?
You can appoint a family member or a friend over the age of 18 years who is an Australian resident to act as trustee.
You may also appoint a professional trustee company.
The trustee is the legal owner of the trust’s assets. They have a duty to manage these in the best interest of the beneficiaries, as outlined in the will.
How long can a testamentary trust operate?
The trust will end at a time, or upon an event, specified in the will. For example, you could specify that the trust ends when the beneficiaries attain a certain age or complete their education.
Alternatively, it could be once a life interest beneficiary dies. At that point, the other beneficiaries (referred to as remainder beneficiaries) inherit the assets.
What factors should I consider before establishing a testamentary trust under my will?
There are a number of issues you should consider before deciding to set up a testamentary trust under your will:
The cost (there will be ongoing administrative costs involved in maintaining the trust)
Whether the income generated by your estate would be sufficient to warrant a testamentary trust
Whether there are special needs, such as a beneficiary with a disability who may not be able to manage their affairs.
If I already have a family trust, can I set up a testamentary trust?
The assets of your family trust will not form part of your estate.
If all your assets are owned by your family trust, there would be no point in establishing a testamentary trust unless you planned to wind down your family trust and transfer the assets in it to yourself.
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What is a power of attorney?
A power of attorney is a legal document that appoints and authorises a person or a trustee organisation (the attorney) to act on your behalf in the areas of financial management and property.
You can appoint your attorney for:
a limited period; or
an indefinite period.
It is important to understand that power of attorney in NSW only applies to financial and legal matters. It enables your attorney to sign legally binding documents on your behalf, according to your instructions, when you cannot do so personally.
You can use a power of attorney for almost any financial purpose, including:
collecting debts
voting at meetings
operating your bank accounts
managing your investments
collecting rent.
Under the NSW legislation, there are two types of power of attorney:
a general power of attorney, which is useful if you are going to be away for a short time.
an enduring power of attorney, which comes into effect if you lose mental capacity.
It is important to note that a general power of attorney is automatically terminated if you lose mental capacity. Therefore, you should probably make sure you also have an enduring power of attorney.
In addition, a power of attorney does not authorise someone to make other decisions about your affairs, such as:
lifestyle
health
personal affairs.
To have someone who is responsible for those issues, you need to appoint an enduring guardian.
In what circumstances should you consider appointing a power of attorney?
You might draw up a limited power of attorney, in order to enable your attorney to act for you if you are going overseas. You might want to give your attorney access to your bank accounts, so they can pay your bills.
Alternatively, you might appoint a power of attorney to deal with a specific situation in another state or overseas.
Who should you appoint as your power of attorney?
You don’t have to appoint a lawyer as your power of attorney. In this context, the word ‘attorney’ does not refer to a lawyer or a solicitor. Instead, it refers to your authorised representative.
Because the attorney has full authority to deal with your affairs (both financial and legal), it is important that you appoint someone you trust and who will act in a responsible way.
You could appoint:
a family member
a close friend
a trustee organisation
a lawyer.
Ideally, the person you appoint should have the business and financial skills to manage your affairs properly.
Your attorney must agree to take on the role, so you should discuss it with them before you appoint them.
Who should prepare your power of attorney?
You should probably have your power of attorney prepared by a lawyer.
First, a power of attorney must be witnessed by a prescribed person (who may be a lawyer).
Second, a lawyer can help you ensure that the power of attorney is drafted in a way that protects your interests. For example, they can put limitations and conditions on the attorney.
How does Monardo Solicitors approach preparing powers of attorney?
Are you the kind of person who likes to have their affairs in order? Would you feel more comfortable if you had a power of attorney? Would you like a lawyer to draft it?
In order to ensure that preparing your power of attorney is as efficient and cost-effective as possible, as well as ensuring that the document reflects exactly what you intended, we’ve designed a power of attorney form to simplify the process.
How does our power of attorney form work?
Step One: You fill in the power of attorney form
You simply fill in the power of attorney form on this website and send it to us via the reply button at the bottom of the page.
Step Two: We will get back to you quickly, with a quote for how much it will cost to draft your power of attorney
We will review the information you’ve provided and give you a quote for drafting your power of attorney as per your instructions.
If we need any additional information or think there may be other issues, we will get in touch with you.
Step Three: We draft your power of attorney
If you are happy with our quote and instruct us to go ahead, we will prepare a draft power of attorney for you to review.
Step Four: You review your draft power of attorney
You review the draft power of attorney we have prepared for you and let us know whether you would like any amendments made.
Step Five: We arrange for your power of attorney to be signed and witnessed
We arrange for you to sign your power of attorney and have it witnessed. We can arrange copies to be made for you and even for the original to be stored in a safe place at no extra cost.
Frequently Asked Questions
When does a power of attorney take effect?
You can elect when your power of attorney comes into effect.
This could be:
immediately
when the attorney accepts the appointment
at a particular date
when the principal’s attorney considers that the principal needs assistance managing their financial affairs.
How long does a power of attorney last?
A power of attorney will operate until:
you cancel it
the attorney no longer wants to act
the Civil and Administrative Tribunal (Guardianship Tribunal) or Supreme Court makes an order affecting the power of attorney.
It also ceases if either the attorney or the principal becomes:
bankrupt
dies
loses their mental capacity.
If the power of attorney has been registered, a written revocation of that power should also be registered.
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What is an enduring power of attorney?
An enduring power of attorney is a legal document that allows you (the principal) to nominate one or more persons (referred to as the attorney) to act on your behalf in the event that you can no longer manage your own affairs. It gives the attorney the authority to manage your legal and financial affairs.
This includes buying and selling:
real estate
shares
other assets.
Under an enduring power of attorney, the attorney can also operate your bank accounts and spend money on your behalf.
An enduring power of attorney is something you might like to prepare, along with your will, because it is one of the ways you can prepare and plan for the future.
What are the advantages of having an enduring power of attorney?
A power of attorney can only be made while you are of sound mind. Therefore, an enduring power of attorney is a safeguard against the possibility of not having anyone with authority to manage your property or finances if you suffer loss of mental capacity.
It is also important to realise that having an enduring power of attorney is relevant to everyone, not only people who are old or with an illness that affects their mental capacity.
If you have an accident that affects your mental capacity, no one will be able to have access to your assets, such as your bank accounts, unless you have made an enduring power of attorney.
If you don’t have an enduring power of attorney, your family or a close friend will have to apply to be appointed as your financial manager, either through the Civil and Administrative Tribunal or the Supreme Court. This could take a considerable amount of time.
In short, it is much easier if you have given someone an enduring power of attorney.
How does Monardo Solicitors approach enduring power of attorney?
Are you the kind of person who likes to have their affairs in order? Would you feel more comfortable if you had an enduring power of attorney? Would you like a lawyer to draft it?
In order to ensure that preparing your enduring power of attorney is as efficient and cost-effective as possible, as well as ensuring that the document reflects exactly what you want, we’ve designed an enduring power of attorney form to simplify the process.
How does our enduring power of attorney form work?
Step One: Fill in the enduring power of attorney form
You simply fill in our enduring power of attorney form and send it to us via the reply button at the bottom of the page.
Step Two: We will get back to you quickly, with a quote for how much it will cost to draft your enduring power of attorney
We will review the information you’ve provided. If we have everything we need, we will prepare a draft of your enduring power of attorney, as per your instructions.
If we need any additional information or think there are any other issues, we will get in touch with you.
Step Three: We draft your enduring power of attorney
If you are happy with our quote and instruct us to go ahead, we will prepare a draft enduring power of attorney for you to review.
Step Four: You review your draft enduring power of attorney
You review the draft enduring power of attorney we have prepared for you and let us know whether you would like any amendments made.
Step Five: We arrange for your enduring power of attorney to be signed and witnessed
We arrange for you to sign your enduring power of attorney and have it witnessed. We can arrange for copies to be made for you and even for the original to be stored in a safe place at no extra cost.
Who can witness an enduring power of attorney?
In NSW, an enduring power of attorney must be witnessed by one of the following:
a registrar of a local court
a barrister or solicitor admitted in any Australian state or territory
a licensed conveyancer
an employee of the NSW Trustee and Guardian
an employee of another trustee company who has completed an approved course of study
someone qualified as a lawyer in a country other than Australia.
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What is an enduring guardian?
An enduring guardian is a person who is appointed to make personal, health and lifestyle decisions on behalf of another person (the appointer) if the appointer loses their physical or mental capacity to make their own decisions.
What can an enduring guardian do?
An enduring guardian can make health and lifestyle decisions for you.
More specifically, they have the power to decide:
where you will live
what medical treatment you are to receive.
However, if a person objects to medical treatment, an enduring guardian cannot override them.
When you appoint an enduring guardian, you can specify what functions the guardian is to exercise and any other conditions or limitations you wish to impose.
Why should you consider appointing an enduring guardian?
There are a number of reasons why you might want to appoint an enduring guardian.
First, an enduring guardian can save a lot of time and paperwork when things go wrong.
Second, appointing an enduring guardian ensures that a person you have selected and trust makes key decisions in your life (such as where you will live and what medical treatment you receive).
When does an enduring guardianship come into effect?
In NSW, an enduring guardianship only comes into effect when you are no longer capable and are ‘a person in need of a guardian’ under the Guardianship Act 1987 (NSW).
How does Monardo Solicitors approach enduring guardianship?
Are you the kind of person who likes to have their affairs in order? Would you feel more comfortable if you had an enduring guardian? Would you like a lawyer to draft this document?
In order to ensure that preparing your enduring guardianship appointment is as efficient and cost-effective as possible, as well as ensuring that the document reflects exactly what you want, we’ve designed an enduring guardianship appointment form to simplify the process.
How does the enduring guardianship appointment form work?
Step One: Fill in the enduring guardianship appointment form
You simply fill in our enduring guardianship appointment form and send it to us via the reply button at the bottom of the page.
Step Two: We will get back to you quickly, with a quote for how much it will cost to draft your enduring guardianship appointment
We will review the information you’ve provided and give you a quote for drafting your enduring guardianship appointment, as per your instructions.
If we need any additional information or think there are any other issues, we will get in touch with you.
Step Three: We draft your enduring guardianship appointment
If you are happy with our quote and instruct us to go ahead, we will prepare a draft enduring guardianship appointment for you to review.
Step Four: You review your draft enduring guardianship appointment
You review the draft enduring guardianship appointment and let us know whether you would like any amendments made.
Step Five: We arrange for your enduring guardianship appointment to be signed and witnessed
We can also arrange for you to sign your enduring guardianship appointment and have it witnessed. We can arrange for copies to be made for you and even for the original to be stored in a safe place at no extra cost.
It is important to note that you and your prospective guardian must sign the form in front of a solicitor, barrister, registrar of a local court or overseas registered foreign lawyer. However, you do not need to sign at the same time.
Frequently Asked Questions
Who can you appoint as your enduring guardian?
You can appoint anyone over the age of 18 as your enduring guardian.
However, you cannot appoint anyone directly or indirectly involved in, or responsible for, your medical treatment.
Can you have more than one enduring guardian?
Yes, you can appoint more than one enduring guardian.
You can then direct that they make all decisions jointly, or that different guardians have responsibility for different decisions.
Can you revoke your enduring guardian appointment?
You can revoke your enduring guardian appointment as long as you still have the capacity to understand.
The revocation must be in writing and witnessed by a legal practitioner or a registrar of a local court.
It must also be given to the person previously appointed as enduring guardian.
Can the enduring guardian resign their appointment?
The enduring guardian can resign their appointment.
If the appointer still has capacity, the enduring guardian can simply give them written notice of their resignation.
If the appointer has lost capacity, the guardian must obtain the approval of the Civil and Administrative Tribunal.
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Administrator (in the context of wills and estates law)
An administrator is a person appointed by the court to deal with an estate because there was no will (the person died intestate), or because the sole executor has died or renounced their position as executor.
Advance care directive
An advance care directive is a written document that sets out a person’s wishes about their future medical treatment if they lose mental capacity to make decisions themselves. Unlike an enduring guardianship appointment, an advance directive is not legally binding.
Attorney (as in power of attorney)
In the United States, the word attorney is often used to refer to a lawyer. However, in the case of a power of attorney, it means your authorised representative. This person does not have to be a lawyer. Most often, the attorney is a family member or close friend.
Beneficiary
A beneficiary is a person who receives a gift or benefit under the terms of a will. The term is also used to refer to a person who is entitled to a gift or benefit under the terms of a trust.
Codicil
A codicil is a way of updating a will. It is an addition to an earlier will and is located in a separate document. A codicil has to meet the same formal requirements as a will. It is important that a codicil doesn’t contain a clause revoking previous wills because that may cause it to cancel the will it was meant to update.
Creditor
A creditor is a person to whom a debt is owing.
De facto relationship
A de facto relationship is one where two adults are living together as a couple but not married to each other or related by family.
Discretionary testamentary trust
A discretionary testamentary trust is where the beneficiary has the option to take all or part of their inheritance via a testamentary trust. The primary beneficiary has the power to remove and appoint the trustee, and can appoint themselves to manage their inheritance inside the trust.
Enduring guardian
Under the Guardianship Act 1987 (NSW), it is possible for a person with capacity to appoint an enduring guardian. If you lose capacity at some stage in the future, an enduring guardian will take over and make decisions for you in areas such as accommodation, health and services. However, an enduring guardian cannot make decisions about your money or assets. If you wish to appoint someone to take control of your financial and legal affairs, you will need to prepare an enduring power of attorney.
Enduring guardianship
An enduring guardianship is legal appointment under the Guardianship Act 1987 in which a person (the appointer) gives one or more people authority to make specific decisions about the appointor’s personal affairs, health care or lifestyle, should the appointor lose the ability to make such decisions.
Enduring power of attorney
An enduring power of attorney is a legal document that allows you (the principal) to nominate one or more persons (referred to as the attorney) to act on your behalf, in the even that you can no longer manage your own affairs. It gives the attorney the authority to manage your legal and financial affairs.
This includes buying and selling:
real estate
shares
other assets.
Under an enduring power of attorney, the attorney can also operate your bank accounts and spend money on your behalf.
Estate
In the context of wills, estate is the term used to refer to all the affairs of a person that remain outstanding at their death. It refers to both assets and liabilities.
Executor
An executor is a person or organisation nominated under a will to carry out the wishes of the testator. Put simply, this involves making sure their debts are paid, and their property and assets are distributed according to their wishes.
Family trust
A family trust (sometimes called a discretionary trust) is a trust set up to hold a family’s assets or to conduct a family business. Family trusts can be useful tools in protecting family assets. They provide flexibility in sharing the tax burden among family members.
Grant of probate
A grant of probate is a written authority from the Supreme Court of NSW to an executor, which allows them to administer a deceased estate.
Intestacy rules
The intestacy rules are the rules that are used to decide where an estate will go when no will has been made, or where the will does not dispose of all the estate. In NSW, these are set out in Chapter Four of the Succession Act 2006.
Intestate
Intestate is the term used to describe the situation where a person dies without leaving a will.
Joint tenancy
Joint tenancy is a form of co-ownership where property is owned by more than one person. In joint tenancy, when one co-owner dies, the property automatically passes to the other co-owner(s), regardless of what the will says. This is the favoured type of ownership for couples.
Letters of administration
Letters of administration are the written authority from the court allowing a person to act as administrator of an estate where no will has been left.
Letters of administration with the will annexed
Letters of administration with the will annexed are the written authority from the court allowing a person to act as an administrator of an estate where a will was left but no executor was appointed, or the sole executor died before the will-maker or the sole executor renounced probate.
Power of attorney
A power of attorney is a legal document that gives one or more people the power to act on behalf of another in financial or legal matters.
Probate
Probate is the term used to describe the process whereby you seek and are granted an order from the Supreme Court stating that a will is valid and the executor/s have the right to collect and administer the estate in accordance with the terms of the will.
Protective testamentary trust
A Protective testamentary trust is a trust where the beneficiary must take their inheritance via the trust and does not have the option to appoint or remove trustees. It can be useful in cases where the beneficiary is facing bankruptcy; has matrimonial problems; or has an intellectual disability, meaning they are not able to manage their own finances.
Testamentary trust
A testamentary trust is a trust that is created in a will and becomes active on the death of a testator. The idea behind a testamentary trust is to provide greater control of the distribution of assets to beneficiaries. There are a number of tax advantages to testamentary trusts, meaning that they can be useful estate planning tools.
Tenancy in common
Tenancy in common is a form of co-ownership where property is held in common with others but each has a separate share. The share of a deceased person passes to their beneficiaries and not to surviving co-owners. In this way, it is different from joint tenancy.
Testamentary capacity
In order to be regarded as having testamentary capacity, you need to be able to:
understand what a will is
realise in general terms the amount and type of property of which you are disposing
weigh the ‘moral claims’ that you should be considering when deciding to whom to leave your property.
Finally, you must know and approve of the contents of the will.
Testator
A testator is the person who died and made a will.
Trust
Generally, a trust is an ownership structure where the assets of the trust are owned by one person or organisation (the trustee) but held for the benefit of other individuals (the beneficiaries).
Trustee
A trustee is a person who holds property in trust for another person.