Telephone:  02  9601 7900

Address:     Suite 1, 16 Norfolk Street, Liverpool  NSW  2170

WILLS & ESTATE PLANNING

WILLS

TESTAMENTARY TRUSTS

POWERS OF ATTORNEY

ENDURING GUARDIAN

“LIVING WILLS” (Advanced Care Directives)

WILLS.  Most people need a Will to ensure that their assets on death are distributed in accordance with their wishes and in the most cost and tax effective way. This is even more important if you have family and other dependants.

Contrary to popular belief, if you die without a Will, without valid Will, or with a partly valid Will, the government doesn’t take your property but the law sets out how your assets will be dealt with, which may not be the way you wanted.

Marriage and divorce can affect the validity of a Will too. 

If you own a business, you may need to also consider how a Will may affect your business .

New laws concerning Wills commenced operating in NSW on 1 March 2008 (Succession Act 2006). The main aims of the new laws include being part of moves to modernise the law concerning Wills, and to be part of efforts to make laws about Wills more consistent across Australia.

Properly prepared Wills made by a Will-maker (called a “testator”) before 1 March 2008 will continue to be effective. Virtually all Wills made from 1 March are subject to the new laws, however.

So, what’s the effect of these new laws? The main changes include:

• There are now wider definitions of how a Will can be made. Providing certain conditions are met, a Will could be in the form of a video, a tape recording, or even an internet posting.

• Beneficiaries that witness a testator’s signature on Will can now in some cases “save” any gift made to them in a Will, which gift otherwise might be void.

• Beneficiaries must survive the testator by 30 days for their gift to be valid, whether or not this is specified in the will

• After a testator’s death, certain people are now allowed see a copy of the Will, although they may incur expense for that access.

• Upon payment of a fee, a Will can now be deposited with the Court.

• A Court may make a Will for people who lack the capacity to do so. Situations where this could be considered are, for example, where a person loses capacity following a serious illness or injury, or after person develops dementia.

• Unless the contrary intention appears, divorce or marriage annulment voids a gift in a Will to the former spouse and revokes their appointment as executor of the testator’s Will.

If you're thinking about making a Will, the new changes should be taken into account.

There really isn’t such a thing as a “standard Will”. 

We will take the time to ask you questions, answer your questions, discuss your intentions, and find out about your own circumstances.  After the first appointment we then usually prepare a draft, which we discuss with you, before arranging for the signing of your Will.

What does it cost? This process usually takes at least about 3 hours, so you can see how it is not something done lightly, but it isn’t as expensive as you may think. Our service is dedicated and our fees are competitive

Frank Alvaro is well experienced in assisting clients in this area of the law.  To see if we can help you, call us for more information.

[ back to top of page ]

TESTAMENTARY TRUSTS.  A testamentary trust is a trust created by your Will.  It is a very useful device to control how certain funds or gifts in your Will are to be applied in particular circumstances. 

A common example is a trust set up to hold funds gifted to children until they reach adulthood. 

There are endless other possibilities but other examples include protective trusts set up to protect funds intended for a loved one who may be an undischarged bankrupt, or exposed to a financially risky law suit, or even to protect funds intended for a spendthrift, disabled or ill beneficiary.

If this sounds like something you’d like to consider, or you’d like to see if we can help you, call us for more information.

[ back to top of page ]

POWERS OF ATTORNEY.  By a Power of Attorney (POA) you appoint another person to act for you in relation to financial affairs.

A POA states what the attorney is authorised, and not authorised to do. As the action taken by an attorney under the POA binds you, it is important to appoint someone you can trust.

A POA can be effected to operate forever, a limited time, or after a certain event happens. Frank Alvaro usually advises his clients to consider appointing 2 attorneys – they can be appointed to work together, or the second attorney is automatically authorised to act if the first one can’t.

A POA can be cancelled at any time while you have the legal capacity to do so. It can also last for a set period, for example, while you are overseas.

A POA ceases to be legally valid once the person who granted the power dies.

Similar to taking instructions for a Will, our process usually takes at least 1½ to 3 hours to attend to properly and ensure compliance with the NSW Powers of Attorney Act (2003). Again, it probably isn’t as expensive as you may think.

Frank Alvaro is well experienced in assisting clients in this area of the law. To see if we can help you, call us for more information.

[ back to top of page ]

ENDURING GUARDIAN.  An Enduring Guardian differs quite markedly from a power of attorney although often the two are often wrongly thought of as achieving the same result.

Whereas a power of attorney is more concerned with authorising someone to make binding financial commitments on your behalf, an Enduring Guardian is someone you appoint, while you have legal capacity to so, to make personal, health or lifestyle decisions on your behalf should you lose the capacity to make them for yourself.

For example, you may wish to appoint someone to make day-to-day decisions for you, such as about nursing home care, consent to medical treatment and lifestyle decisions.

A family member or friend can be appointed as a guardian.   They have your best interests at heart and willing and able to act as your guardian.

Appointing an Enduring Guardian can help reduce conflict between family members because, for example, whilst there may be disagreement between some, they will accept or respect the fact that you have made the choice to appoint someone to make these sort of decisions for you.

To see if we can help you or if you wish to arrange to appoint an Enduring Guardian, call us for more information.

[ back to top of page ]

“LIVING WILLS” (Advanced Care Directives).  Often people want to have a say in what happens to them regarding their health care, especially in having a say in medical treatment they may receive, especially if they were to suffer serious illness or injury.

Friends, family and medical carers often are the ones left to make difficult decisions. If you want to have a say in your medical treatment for when you may not have the capacity to so, an Advanced Care Directive (ACD) may be something to consider.

An ACD is a document that sets out your wishes regarding medical treatment you receive for when you are not able to communicate your health care choices – such as those concerning palliative care, ending life support in certain circumstances, and high risk procedures. 

In New South Wales an ACD is legally binding as it based on one’s rights (providing they have capacity) in determining their own medical treatment.

Considering an ACD is often very sensitive, and sometimes difficult.  Drafting an ACD not only ideally requires legal advice, but also careful consideration of other related issues.

As you can see, there is often also a link to consider between ACD’s, formal Wills and enduring guardianships.

Frank Alvaro can discuss questions you have about all of these. To see if we can help you, call us for more information or to make an appointment.

[ back to top of page ]