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Wills and Estates

WillsWills and Estates

In this day of blended families and people living longer, it very important that your Will is drafted by a specialist Wills and Estate Lawyer who has knowledge and experience in this complex area of law.

What is a Will

A Will is a legal document, that states exactly how a person property will be distributed upon their death. It can include details whether a person wishes to be buried or cremated.

What are the requirements for a Valid Will?

A Will is not valid unless:

  • It is in writing and signed by the Testator (person making the Will) or by some other person who is present and signs at the direction of the Testator;
  • The signature is made or acknowledged by the Testator in the presence of 2 or more witnesses present at the same time and;
  • At least 2 of those witness attest and sign the Will in the presence of the Testator

Even though a Will may not meet all the formal requirements that are required it is possible upon application to the Supreme Court that the Court dispenses with the legal requirements and if the evidence is proved, finds that a valid Will does exist.

This is a very complex area of law and we have the skills , experience and expertise to assist you.

Elder Law

Elder Law is a growing area of legal practice and it covers legal issues that relate to estate planning, wills, trust, arrangements for care, social security and retirement benefits. According to data compiled by the Social Security Administration:

  • A man reaching age 65 today can expect to live, on average, until age 84.3.
  • A woman turning age 65 today can expect to live, on average, until age 86.6.

About one out of every four 65-year-olds today will live past age 90, and one out of 10 will live past age 95.

Australia is an ageing population and as people age unfortunately they also become vulnerable and open to abuse and discrimination.  If you require assistance with any legal issue that relate to Elder Law contact us. 

Powers of Attorney

Powers of Attorney relate to financial, property and contractual matters. A Power of Attorney is a written and signed document, whereby the “Principal” entrusts and confers power on another person, “the Attorney” to make financial decisions on the behalf of the Attorney.

The Attorney can sign cheques, deal with bank accounts, buy and sell property. The Attorney must act with good faith and always in the best interests of the Principal. The Attorney can be called to account for their actions and should keep records of all their dealings. The Attorney must also keep their finances separate from that of the Principal.

There are 2 types of Powers of Attorneys:

  1. General Power of Attorney

Which is created for a specific period of time, for example if the Principal is travelling overseas and needs to sell their home, then they can instruct their Attorney to sign all documents for the sale of the home. The general Power of Attorney is usually limited for a specific period of time and is suspended if the Principal loses their capacity or becomes physically or mentally ill.

 

  1. Enduring Power of Attorney

An enduring Power of Attorney is one which operates even after the Principal has lost capacity or is mentally or physically unwell. The benefit for older people is that it enables them to choose one Attorney or joint Attorneys to manage their financial affairs as in the event that they become incapable of doing so. This avoids the need for an application to be made at the Guardianship Division | NCAT – NSW Civil and Administrative Tribunal or the Supreme Court to appoint a Financial Manager.

Enduring Guardians

An enduring guardianship is a document which confers power on a “Guardian” to deal with the accommodation and health of the Principal. The Enduring Guardian operates at the time that the Principal loses capacity and not before. It will cease when the Principal dies or if it revoked by the Principal, whilst they have capacity.

To appoint an enduring guardian, the Principal must be over the age of 18 years and must have understanding of what they are doing. The enduring guardian must be an adult and cannot be paid for their services to the Principal.

Cominos Family Lawyers. Call 02 8999 1800 or email us here.