Estate Planning Checklist

There will be times throughout your life when your situation will change due to certain events. During these times, it’s important that your Estate Plan is appropriately adjusted to remain accurate and current. Some circumstances that may warrant a change in Estate Planning may include:

  • When children or grandchildren are born
  • If a child graduates into a professional career
  • The breakdown of a child’s marriage
  • The ageing of an executor appointed in your Will
  • A resolve to assist a needy charity

Another consideration is the possible onset of incapacity. Be aware that your Will deals with matters upon your death, however, if you were to become incapacitated, it would have no influence in that situation.

Key Issues

There are some key issues to contemplate when reviewing your Estate or Incapacity Plan:

Enduring Powers of Attorney and Guardianship

If you were incapacitated due to illness or injury, who would you wish to take over the financial, medical and lifestyle decisions for you? This is an important decision that requires careful thought and consideration.

Powers of Attorney and Guardianship are legal documents that allow you to appoint someone to make these decisions on your behalf. Many are under the impression that your partner or children would have automatic authority to make those decisions. However, if you have not appointed Attorneys or a Guardian, it is likely your family members will need to apply to your State Tribunal to obtain the authority to make those decisions for you.

The three main legal documents which you may need to consider and update as required include:

1. Enduring Power of Attorney (Financial)

This enables the appointed person(s) to manage your assets and finances. You can decide whether your Attorney’s control commences immediately or on a specific date or occasion (ie. upon your mental incapacity). You may appoint one or more persons to be your Attorney and in the case of multiple people you can specify whether the appointment is to be joint (where all Attorneys must act together) or several (where any one of the Attorneys can act on your behalf).  Your Attorney(s) must always act in your best interests.

2. Enduring Power of Attorney (Medical)

This allows you to appoint a person to make decisions about health care and medical treatment on your behalf. This person only commences power if you lose your capacity. Only one agent can be appointed, along with one alternate agent. Your agent can make decisions including; the consent for medical treatment, choosing between treatment options and refusing consent and withdrawing treatment, including turning off life support systems, on your behalf. Your agent cannot refuse palliative care.

3. Enduring Power of Guardianship

This permits you to appoint a person who can make health care and lifestyle decisions on your behalf; e.g. where you live, with whom, who can visit you and whether you should work. The person only gains control if you have lost the capacity to make those decisions yourself. You can only appoint one person to be your Guardian and one alternate Guardian. Any person who provides you with professional care, treatment or accommodation, cannot be appointed.

Testamentary Trust Wills

In cases where the intended beneficiaries of your Estate may benefit from asset protection, Testamentary Trust Wills should be considered.
Examples of where this may be appropriate can include; for intended beneficiaries who are in an occupation which carries a risk of being sued (ie. Accountants or Specialists) or for intended beneficiaries who might be in an unstable marriage or relationship.

As an alternative to leaving your assets directly to beneficiaries, Testamentary Trust Wills give your assets to a Discretionary Trust, which can provide potential benefits to the intended beneficiaries and their families. The Testamentary Trust is established upon your death. Testamentary Trust Wills may also offer taxation advantages.

Another consideration would be if you have intended beneficiaries with a severe disability. In this case, a special disability Trust might be appropriate, which can offer significant Pension advantages to the beneficiary.

Superannuation Death Benefit Nominations

Your Superannuation benefits payable upon death are not necessarily controlled by your Will. They may require special treatment and are often controlled by a separate document called a Death Benefit Nomination.

A Death Benefit Nomination can be either binding or non-binding and they often lapse after a certain period. If you do not make a binding nomination, the Trustee of your Superannuation Fund will have the authority to determine to whom the death benefit is paid. Be aware that this may result in a different outcome to that which you intended or would have wished. Therefore, it’s important these nominations are reviewed and updated regularly as part of your Estate Planning.

For further information on estate planning considerations, please speak to your Financial Adviser. They can liaise with your preferred solicitor and together put in place a strategy to protect you now and into the future.

Source: Capstone Financial Planning.


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