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Wills & Estates

Estate planning most obviously includes making a will to ensure that your estate is distributed in accordance with your wishes. If you have superannuation it also important to know that super is not an estate asset. Because of this, as part of your estate plan, it is important to make a nomination with your super fund of who you want to receive your super benefits when you pass away. There are two types of nominations you can make with your super fund:

There are two types of nominations you can make with your super fund:

  • Binding death nomination; and
  • Non-binding death nomination.

It is our advice that every good estate plans includes making a binding death nomination with your super fund. It is important to note that to be binding, this nomination needs to be confirmed or updated with your fund every 3 years.

Estate planning does not just involve making decisions about what you want to occur when you pass away. Equally as important when planning for the future is ensuring that you will be properly cared for if your physical or mental health takes a turn for the worse.

Our estate lawyers can give you the right advice on what you need in place, when considering your personal circumstances, to ensure that all of your affairs are in order for your future protection and well-being. Two important documents in this planning process are known as an Enduring Power of Attorney and an Enduring Guardianship.

Enduring Power of Attorney

An Enduring Power of Attorney is a legal document in which you can appoint someone to be your financial manager. In the document, you can appoint as many attorneys as you like and decide whether there are to be any limitations on their authority.

You can also decide when the appointment is to commence and the most important aspect of an Enduring Power of Attorney is that it is intended to continue to have effect if and when you lose capacity. The attorney cannot gain any benefit from the appointment and must comply with strict obligations when dealing with your finances.

Enduring Guardianship

An Enduring Guardianship is a legal document in which you can appoint someone to make lifestyle, health and medical decision for you when you are no longer capable of making those decisions for yourself.

The types of decision they can make include:

  • Where you live;
  • What health care and personal services you receive; and
  • Consenting and refusing certain medical treatments.

The document can also be used by your guardian to allow them to obtain access to and receive all of your personal and medical records from any health care provider you have ever used in the past.

Advance Care Directive

An Advance Care Directive, sometimes referred to as a “Living Will”, is a document which sets out clearly your directions of what your wishes are and what values need to be considered before medical treatment decisions are made on your behalf. It is a different document to an Enduring Guardianship as in the Guardianship document you appoint a substitute decision maker, but in your Advance Care Directive you inform the decision maker how to make those decisions. Because there is an obvious link between the two documents, often you can attach the Advance Care Directive to the Enduring Guardianship document.