Wills, Enduring Power of Attorney, and Advanced Health Directives – Understanding Your Personal Documents

Wills, Enduring Power of Attorney, and Advanced Health Directives – Understanding Your Personal Documents

While many people understand the importance of Wills, the lesser-known personal documents you may have completed, can often be confusing or their purpose misunderstood. Below we briefly examine what the effect of each document is, the differences, and the importance of each.

WILLS

A Will is a legal document that sets how your estate (all your property, assets and liabilities) are to be dealt with after you die and who is to be in charge of doing this (the ‘Executor’).  Your Will can also include other information such as who is to be the Guardian of any infant children or your wishes after your death in terms of whether you wish to be buried, cremated or a funeral to be held.

The Executor is the individual/s you appoint to carry out the terms of your Will. Their role is to collect all your assets, pay all liabilities, organise any funeral, notify relevant parties and then distribute any remaining funds or property of your estate to your beneficiaries. Often in a Will an ‘Executor’ may also be referred to as a ‘Trustee’ – this is because until the Executor actually distributes your estate, they hold it on ‘trust’.

It is important to have a Solicitor draft your Will as there are requirements to ensure it is valid. You may also need advice regarding other issues without knowing it, such as potential family provision claims and binding death benefit nominations for your superannuation. It can save your family a great deal of stress and problems after your death if everything is completed correctly.

ENDURING POWER OF ATTORNEY

Not to be confused with your Executor, an Attorney is someone that can make decisions on your behalf while you are still alive (although often your Executor and Attorney will be the same person). An ‘Enduring Power of Attorney’ (EPOA) is the legal document that appoints your Attorney/s. There two types of Attorneys, your Attorney for personal matters and your Attorney for financial matters. This can be the same person for both, different people for each or multiple people.

Your Attorney for personal matters is able to make decisions that relate to personal and lifestyle matters, such as your health care, where you live, and support services. Your Attorney for personal matters can only act when you do not have capacity. That is, while you can still make decisions for yourself, and understand those decisions, your Attorney cannot act.

Your Attorney for legal matters can make decisions affecting your finances and related legal matters, this includes paying expenses, selling your property or carrying on your business. A significant difference with your personal Attorney, is that you can appoint your financial Attorney immediately. This may be useful in circumstances where you travel a lot or need someone to assist you with your finances.

ADVANCED HEALTH DIRECTIVE

An Advance Health Directive (AHD) is a legal document that allows you to make decisions regarding your health care in the event you are unable to or no longer have capacity. Most importantly to some individuals is the ability to refuse life sustaining treatment in certain circumstances in advance. Common circumstances where this may be considered is if they were in a persistent vegetative state or have a terminal illness. With an AHD, you can advise your treating medical professionals in advance that should that occur, they are not to administer treatment aimed at keeping you alive. Some people note that an advantage of doing this is that it means loved ones do not need to make the difficult decisions in those situations.

You are also able to advise of your other views, wishes and preferences in your AHD. This includes being able to live out your last days at home, who you would like to be involved in discussions regarding your health care, and any cultural, religious, or spiritual beliefs.

Here at Miller Sockhill Lawyers, we understand that discussing these issues around your personal documents can be uncomfortable or confronting. We pride ourselves in providing expert advice with sensitivity and compassion.

If you are looking at having your personal documents completed call the friendly succession team at Miller Sockhill Lawyers today.

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Virginnia Yow, Associate, February 12th, 2024