A Guide to Wills, Powers of Attorney and Enduring Guardianship

Wills

A Will is a written document that sets out what you want to happen to any property you own in your sole name at the time of your death (this is referred to as your 'estate'). 

Your estate includes goods such as cash, savings and investments, real estate and personal possessions. If you have joint bank accounts or own property with someone else, your Will does not control what happens to these assets and they will automatically revert to the surviving co-owner upon your death.

At Lamrocks we can help you to document your wishes concerning who will inherit your estate and structure your assets accordingly - providing peace of mind for you and your loved ones.

A Will can be made by anyone over the age of 18, as long as they have the mental capacity to understand what they are doing.   In order to be valid, a Will must be:

• in writing;
• signed by two witnesses who are present when the Will-maker signs the Will;
• dated at the time of signing; and
• made of the person's own free will, without pressure from anyone else.

Most importantly, you can change your Will as often as you like.   The best times to make/update your Will including the following:

• When you marry or divorce
• When you have children
• When you acquire significant assets such as buying a house
• When your circumstances change in any way, for example if you had planned to leave your estate to a relative who passes away before you.

Testamentary Trusts

Creating a testamentary trust when you make a Will allows you to allocate the funds from your estate more effectively and can provide many advantages for your beneficiaries, including asset protection and tax minimisation.

This form of trust can be particularly useful when you are leaving funds or property to children under the age of 18, or relatives with disabilities for example. They ensure that someone who is properly qualified can oversee the inheritance and manage the finances on their behalf, and you can stipulate that they release funds to the beneficiary over a period of time if required.

At Lamrocks, our Accredited Specialist in Wills and Estates Law can provide expert advice and assistance in regard to the creation of trusts and how they should operate. We can determine the most appropriate form of trust in your situation, ensure that your estate is distributed according to your wishes and that your beneficiaries' best interests are looked after.

What happens if you don't have a Will?

If you die without having a Will, the law will decide who gets your assets.   This is called dying 'intestate'.

Intestacy laws in New South Wales are quite complex. Generally speaking, if a person dies leaving a spouse and children, the spouse will be entitled to the whole estate. Our experienced Accredited Specialist in Wills and Estates Law can provide you with more detailed information on the rules of intestacy and how they might apply.

Powers of Attorney and Enduring Guardian

Powers of Attorney and Enduring Guardianship are legal documents that allow a person of your choice to make decisions on your behalf, if you are not able to yourself.

To appoint someone as your attorney or guardian, you must be over the age of 18, and have sufficient mental capacity to make the appointment. You must be able to understand things like:

• what sorts of powers the attorney or guardian will have;
• what sorts of decisions they have the authority to make on your behalf;
• the effects that the appointment may have on you; and,
• how to cancel or change the arrangement in future.

These documents are quite powerful by nature and you should always seek expert legal advice before entering into any such arrangement. At Lamrocks, we have the experience and expertise required to ensure that you not only understand your obligations, but also the potential impact of these documents. 

The appointments you can make include:

General Power of Attorney

Someone to make financial and/or legal decisions for you, usually for a specified period of time such as when you are away on holidays. This person can perform tasks at your direction only, such as signing a legal document for you, buying or selling property, or doing your banking. A General Power of Attorney would come to an end if you lose capacity to instruct your Attorney.

Enduring Power of Attorney

Someone to carry out the same functions as above, but you intend for them to continue to manage these affairs for you if you are no longer able to do so, such as if you suffer mental incapacity (eg. Alzheimer's, Dementia, or other incapacity).

Enduring Guardian

Someone to make day-to-day lifestyle decisions on your behalf, such as where you live and what health care you are to receive, if you are unable to make these decisions yourself at some point in the future.