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The importance of updating your Will in the face of uncertainty


Written by:
Tracey Ryan
Practice Leader | Special Counsel - Private Client Services

The catastrophic impact of the COVID-19 pandemic is unprecedented; there is not one person, family, community, workplace or sector that has not in some way been affected.

According to the WHO, older people and those with pre-existing respiratory and other medical conditions are more commonly seen to develop severe illness. However, as each day unfolds, younger, healthier people are also becoming dangerously ill with the virus.

As a result of the current climate, and the uncertainty we are now facing as a nation, we are seeing many people turn their minds to the future, and what it may now hold for their families.

At the forefront of peoples’ minds is making sure their financial and legal affairs are in order, so that in the event of a crisis, their loved ones are secure, and can be provided for as intended. At Shine Lawyers, we have seen increasing numbers of people seeking to have certain documents drafted and signed - such as updating a Will or designating an Enduring Power of Attorney. However, due to the new laws around social distancing, many people are unsure about how to update or complete these documents.

The following article summarises the main questions that we have received from our clients who are facing uncertainty. It also aims to set out the key things that you should know if you have been thinking about drafting or updating your Will but haven’t quite got there yet, and why it is so important to get your affairs in order sooner rather than later.

I’m not in a high risk category. Do I really need a Will?

Yes. Anyone over the age of 18 is capable of making a Will.

Often younger generations feel that don’t need a Will as they do not yet own anything of real value. However, if you are in the workforce, you may have significant benefits within your superannuation, which will most likely be paid to your estate if you do not have any dependents.

It is also critical to ensure you have considered an Enduring Power of Attorney and an Advance Health Directive.

What is the difference between a Will and an Enduring Power of Attorney (EPA)?

A Will is a legal document detailing where you would like your assets and liabilities to go when you pass away and who you wish to appoint to handle your affairs. It only comes into effect if you die.

On the other hand, an Enduring Power of Attorney is a document that enables you to appoint people to handle your financial and personal/health decisions should you require assistance while you are alive. Upon death, the Enduring Power of Attorney ends and your Will comes in to effect.

So how is an Advance Health Directive different?

An Advance Health Directive is a document that details what treatments you will or will not have depending on the medical condition you have. It enables you to effectively have treatment declined in certain circumstances and ensures your treatment wishes are complied with (when you may not be in a position to voice your wishes). For example, many people may not wish to be placed on a ventilator. This document allows you to say if you do or don’t want such medical treatment.

Whilst these are documents that all adults should implement, it is in uncertain times such as these that bring these issues to the forefront of our minds.

How can I get documents prepared while I’m social-distancing?

Shine Lawyers has always offered consultations over the phone, on Skype or via video chat where full instructions are obtained by a solicitor. Your solicitor will raise everything required so that your documents may be drawn up.

As a part of that discussion, other important assets that may not form part of your estate such as Superannuation and Life Insurance are discussed, and steps are taken to address where these assets should go upon your passing.

Once prepared, your Will, Enduring Power of Attorney or Advanced Health Directive can then be emailed (or if preferred, posted) direct to you, to read in the comfort of your own home, and action as necessary.

What happens if I don’t have a Will?

From a legal standpoint, failure to have a legally valid Will means that your estate will be distributed under a set of rules known as the ‘Rules of Intestacy’.

Unfortunately, this distribution may not reflect your wishes. It also means that someone - your spouse, or a family member - will have to apply to the Court to be appointed Administrator before they can handle your estate. It will add cost to the administration of your estate and in some circumstances, can significantly delay things.

It is for these reasons that it is critical to ensure that your Will has been drafted and updated to reflect your wishes upon your passing.

What happens if I don’t have an Enduring Power of Attorney?

Without an Enduring Power of Attorney, you may have a family member making decisions for you that you would not have elected. They may even make decisions that you would not be happy with or elect for medical treatments that you would have had if you were able to decide yourself.

What kind of things do I need to consider to draft a Will?

To draft a Will, it is important to consider a few critical details, including:

• Who you wish to appoint as your executor/s • Who you wish to appoint as the guardian/s of your minor children • What assets and liabilities you have • How you want your assets to be distributed in the event of your death • How assets that won’t come into your estate should be dealt with.

Shine Lawyer’s Wills and Estate Services

Making your intentions legally binding can help to provide peace of mind in these uncertain times.

Our experienced Wills and Estate lawyers can help to ensure that you have considered everything necessary when it comes to preparing a legally valid Will, your medical directives and final wishes.

Your lawyer will listen to you and gather all of the information that is required. We will guide you through every step of the process to ensure your Will is legally valid and adequately reflects your wishes so that your loved ones are provided for in the future.

Start your Will today.

Written by Tracey Ryan. Last modified: April 2, 2020.

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