Have you heard about wills and enduring guardianship and felt why do I need an enduring guardianship or a will per se? Many clients come to see us on a regular basis regarding their wills, and we always suggest that they put a Power of Attorney & their Enduring Guardianship in place.
Your Enduring Guardian can only act for you if you cannot manage these issues by yourself because of a disability or a possibility of a disability. That is when you should seek legal advice from a trusted firm. It is essential to appoint an Enduring Guardian when you can, as you never know when you might become incapable of making these decisions for yourself. The person you select must be someone that you trust to make these decisions in your best interests. Now let’s dive into the terms that you should be aware of while appointing a legal advisor for your Will or an Enduring Guardian.
What is an Enduring Guardianship?
First of all, an Enduring Guardianship and Advance Care Directive help document notifies what lifestyle and health decisions need to be followed when you don’t have the capacity to make them for yourself. An Enduring Guardianship document authorises someone to make lifestyle, health & medical decisions for you. This legal document can be made if you become ill or injured. An Enduring Guardian can control or decide:
- Where you live
- The health and personal services you get
- And what medical treatment you get
Why Do You Need An Enduring Guardian?
If there is a chance that you might lose your mental ability & you’re unable to look after yourself, you will need someone to look after you. Typically, your next of kin or a near family member would take on this responsibility, but this may not be necessary depending on your family’s dynamics. To avoid confusion (or disagreement), you can appoint an enduring guardian through a legal document with the help of a lawyer. Whether you should think of appointing an enduring guardian is affected by various factors such as:
- Your age.
- Your health.
- Your family record of mental illness.
- Your concern about an accident or a misfortune.
Suppose you don’t appoint an enduring guardian, and there are conflicts between your family as to who can make decisions or who is responsible to take care of you. In that case, it can eventually lead to legal action and court proceedings. However, enduring guardianship doesn’t guarantee avoiding these complications but provides precise (and formal) instructions to those concerned.
What happens if you don’t appoint an enduring guardian?
If you cannot make decisions for yourself because of a disability, there are some judgments that family members can make for you, but not all. In that case, a close relative will need to apply to the Court to have an enduring guardian appointed for you.
Now, let us talk about Wills and why they are essential.
What Is A Will?
A will is a legally binding document that sets out how you want your assets to be distributed when you die. Wills aren’t just for people who own property or have surplus amounts of money. Making a will is a favorable step you can take to:
- Provide for the individuals you care about.
- Leave particular items to specific people.
- Appoint someone you trust to carry out the instructions in your Will (your executor).
- Leave any other instructions you may have (for example, about your funeral arrangements), or
- Donate to a charity of your choice
Creating a will eliminates the doubts and difficulties that can occur when there is no evidence of the deceased person’s desires. Even if you don’t have too much money or don’t own a house, you may want to leave other valuable or sentimental objects such as jewellery, antiques, artwork, coins, letters, or photographs to certain people. After your death, your property and belongings are termed as your estate.
Why Do You Need A Will?
If you don’t have a will, you don’t have a say about how your estate is divided. For example, if you die without a will (called ‘dying intestate’), your estate will be distributed to your relatives according to a legal formula (intestacy rules). This could be very different from what you intended. Hence, a Dying’ intestate’ can cause complications, delays & extra costs for those left behind. For example, if you die intestate and don’t have any relatives closer than a first cousin, your estate and belongings will go to the government. A will only takes effect after you have passed. For example, if you want a close someone to look after or make decisions about your finances while you are still alive, but you are unable to do this yourself, you will need an enduring power of attorney.
Who Can Make A Will?
Anyone above 18 can make their Will as long as they have mental capacity. For example, a person with a mild intellectual disability or if they are in the early stages of dementia may still be able to make their Will if they have capacity at the time the Will is made. But in this case, we recommend having a trusted legal advisor on board to avoid any mistakes or complications.
Do You Still Need An Enduring Guardianship If You Already Have A Will?
Your Will only comes into the picture after you pass away. If you’re still alive but you’re mentally hindered, then you still need someone to look after you and make important decisions about your healthcare and finances.
Therefore, you need to appoint an enduring guardian to make those care and welfare decisions for you while you’re still alive. Of course, you can select the same person who is your executor in your Will, to also be your enduring Guardian. Still, their appointment as your enduring Guardian will be specified in your enduring guardianship document, as we explained earlier.
How Can You Make A Will & How Much Does It Cost?
Making a will (or enduring guardianship) can be simple and need not be expensive. A will must be signed and witnessed correctly to be legally valid. It is also crucial that your intentions are expressed evidently to reduce the chance of any argument later.
Therefore, it is best to have a trustee, a lawyer, and a Guardian’s company do your Will for you. While there are do-it-yourself will kits, it is recommended to get a professional to do your Will and Enduring Guardianship to ensure it is done properly and is suitable for your needs. A professional from Platinum Lawyers can also advise you on any tax matters you need to consider when drafting your Will.
Now that you know the basics about Will and Enduring Guardianship procedures, there are many other things to take into account while drafting both of these essential documents. You might come up with a lot of doubts and questions and our team at Platinum Lawyers will be there to help you out at any given time.
Call (02) 8084 2764 if you have any will-related or other legal issues in Sydney or Paramatta.
