Most people think about Wills only in the context of how and to whom their assets will be distributed after they pass away.
But what happens if at some stage you lose your mental capacity whilst still alive? Who will make decisions about your health care, accommodation, personal and financial affairs? Having an Enduring Power of Attorney and Guardianship also known as Advanced Care Directive expressly mentioned in your Will, will ensure that you will have the person/s of your choice making those decisions on your behalf in your best interests.
Many people also make the mistake of thinking they are the same thing but there is a major difference between an Enduring Power of Attorney and an Enduring Power of Guardianship or Advanced Care Directive as it is known today.
Enduring Power of Attorney:
If at some stage you lose your mental capacity whilst still alive, who will look after your finances for you? If an Enduring Power of Attorney is not in place, those close to you may incur significant expense and delay in assisting you with your affairs. In such situations, the Public Trustee is likely to be appointed to manage your affairs and consequently become a co-owner of all your assets.
You should consider having an Enduring Power of Attorney drawn up while having your Will prepared. This document gives you security in the knowledge that, when you do not have the mental capacity anymore, you will have chosen people to look after your legal and financial affairs (but not your personal and lifestyle decisions – see “Enduring Power of Guardianship or Advanced Care Directive” below). It is the best peace of mind to know that your interests are protected before anything could happen.
If you are business owner there may be other estate planning considerations. For example, your company may be unable trade if you are its sole director and you do not have a Corporate Power of Attorney in place to cover the event of your death or incapacity.
Enduring Power of Guardianship or Advanced Care Directive:
If in the future you are not mentally able to make personal or lifestyle decisions in relation to your health, safety or welfare, who will decide your accommodation or what medical treatment you have?
You should consider having an Advanced care Directive drawn up while having your Will prepared. This document gives you security in the knowledge that you have chosen people to look after your affairs.
An Advanced Care Directive gives you the right to have your medical treatment, accommodation, holidays and relationship wishes documented, in case you lose the mental capacity to make such decisions. The Substitute Decision-Maker legally named in your Advanced Care Directive, will make decisions about your health and welfare in accordance with your wishes (where this can be determined), rather than impose their own views and values.
You can make very specific directions about medical intervention or any other situation you wish to avoid in the future, health related or otherwise, which your appointed decision maker must honour.
Although it’s sometimes hard to think about these things, we suggest it is better to be prepared and it’s best to do that while you are fit and healthy enough to make those important decisions. You can take control and make those hard decisions now, so that your loved ones don’t need to in the future.
If you want any more information about Wills or would like to make an appointment to discuss having one drafted please contact our office on (08) 8336 8888 or visit www.xenlaw.com.au/estate-planning-wills-preparation-solicitor/