Do you need just one or do you need all of them?
Your circumstances can change, making it crucial to have a current will, ACD, and POA. Each of these documents serves a distinct purpose and crucial for effective personal and estate planning—to ensure your wishes are followed and to protect you from potential exploitation.
Your best interest forward
Having a Will, POA, and ACD ensures your financial, medical, and personal wishes are met, and protects you and your family from legal complications and exploitation.
Same principles; different executions
There are 2 types of POAs in Australia to administer matters ranging from financial affairs to medical care concerns. There are nuances in some states about executing these documents.
Different Life Stages Covered
These documents are interconnected, such that one may take priority over the other in specific situations. Hence is important to understand which one takes precedence over the other.
A lot of people get confused with interchanging the purposes of these documents. Each of these legal personal documents serves different purposes according to one’s own circumstances. Our team of lawyers in Adelaide specialises in drafting wills, ACD, and EPOA.
Will
A will is a legal document that outlines how you want your assets, money, and other personal possessions are divided when you die, as well as naming your beneficiaries, such as a specific person or organisation, to carry out your obligations after you pass away. Only fifty nine percent of Australians have a valid Will.
This document also encompasses the provision of your minor children (under 18) who are in your care at the time of your death.
What can be specified in your Will?
- Estate planning
- Probate
- Executors
- Powers of attorney
What is a Last Will and Testament?
This is the most recent Will you made before you passed away. It takes precedence over any previous wills and testaments.
I want to make a Will. How do I start?
- Make a list of your assets
- Think about how you would like your assets to be divided.
- Decide who will be your beneficiaries.
- Contact Gabito Lawyers for Will Drafting.
What Happens if I die without a valid Will?
Passing away without a valid and executed Will, the court will issue Letter of Administration to authorise someone to distribute your assets and administer all of your Estates when you die. This puts your family in a very difficult situation because they will have no control and authority over your net worth, legal rights and entitlements.
Power of Attorney (POA)
A Power of Attorney authorises an appointed person to administer and act on behalf of a principal (the person who appoints). This could range from financial affairs up to medical care concerns.
There are two types of POA in Australia:
General Power of Attorney
The arrangement of an individual to oversee legitimate and other monetary undertakings in a constrained time. The principal’s instructions towards the appointed person is cancelled the minute the principal becomes legally incapacitated or dies.
On the other hand,
Enduring Power of Attorney
This is the process of designating someone in connection to the same but can still proceed to function even after the principal dies or becomes mentally incapable to make decisions.
Under legal terms, capacity is defined as your ability to understand, comprehend, and your ability to do as an adult.
Because of this it is advisable to have an up-to-date Power of Attorney in place and to appoint trustworthy attorneys for you not to be taken advantage of.
It is important to note that some states in Australia may have different laws in executing these documents.
Differentiate between Wills, ACDs, and EPOAs to effectively manage your assets, medical care, and legal decisions. Get professional guidance to make the right choices for your needs.
Life changes. And so do your specific circumstances and wishes. It is important that these changes are reflected in your Wills, ACDs, and EPOAs.
Advanced Care Directive (ACD)
This permits an individual to form wishes in respect to their medical treatment on the off chance that the time comes that they are unable and incapable to communicate their wishes for such treatment.
Therefore, it is different from a Will and POA because it does not appoint someone.
An ACD is seen as a very important personal document, especially for the elders because it pertains to specific types of medical treatment in respect to their ending lives.
What can be included in an ACD?
- specific instructions for health care
- personal wishes
- living arrangements
- matters to consider such as the person’s personal values when others need to make decisions in their behalf.
- refusals to some types of medical care (binding provisions) and some life sustaining treatment that is relevant to the current circumstances set out in ACD
- interventions or outcomes a person wishes to avoid
Validity of an ACD
The Government of South Australia validates a signed ACD if the document has been witnessed by an authorised person. However, a signed ACD may still be overruled if the person who wrote an ACD will be proven mentally unfit at that time.
Who can Witness an ACD?
Authorised witnesses can be:
- Registered professionals
- more than 5 years of public service professionals
- Lawyers
- Justices of the Peace
- Ministers of Religion
When does ACD Take Place?
It can immediately take effect when a person who gave the ACD have become mentally impaired.
What is characterised by an impaired decision making?
It pertains to someone who is unable to:
- comprehend information and choices given to them
- understand the consequences of having and not having the health care
- unable to make a decision
- unable to retain information even for a short period of time
- unable to communicate
ACD vs POA
In case on any occasions in the future when the court and medical organisations must select between an ACD and POA, at that point any wishes set out in ACD should take priority.
The Main Take Away
Your personal circumstance will change over the years. This includes your living arrangements, situations with your partner and your children, your investments, your estates, your current health state, financial belongings, and many more.
If you do not create the necessary documents and die without a Will, an ACD and a POA, then the Court may decide the allocation of your assets, or worse, you can easily be taken advantage of.
Contact Gabito Lawyers now if you want to start drafting either one of these documents.
We also offer a package deal for the three documents which includes drafting and execution.
