Wills
Enduring Powers of Attorney
Advance Care directives
Our office can assist you with the preparation of your Will, Power of Attorney/ Enduring Power of Attorney and Advance Care Directive.
Clients often ask us what the purpose of each document is and when the documents take legal effect etc. To assist our clients below are some frequently asked questions about the documents:
What is the purpose of each document?
and
When does the document take effect?
Below is a table which sets out what the purpose of each document is and when the document takes legal effect.
Will
Power of Attorney (POA)
Enduring Power of Attorney (EPOA)
Advance Care Directive (ACD)
What is the purchase of each document?
A Will lets you decide how your assets are to be distributed after your death.
A general POA operates only while you have legal capacity and it is generally used to allow someone to undertake specific financial responsibilities, for example to manage the sale of your house, or to operate a bank account whilst you are overseas etc.
A EPOA lets you appoint someone to manage your assets and financial affairs, even if you have lost legal capacity. The person you appoint could deposit and withdraw money from your bank account, sell your personal property, buy and sell real estate/shares on your behalf etc
A ACD lets you give directions about your future health care, residential and accommodation arrangements and other personal affairs and to express wishes and values about these matters including by specifying outcomes or interventions you wish to avoid.
For example, the ACD can cover areas such as decisions about your health care, end of life, living arrangements, personal matters etc
When does the document take effect?
A Will only takes effect upon your death.
A Will ceases to have any legal effect when all your assets have been distributed in accordance with your wishes in your Will.
A general POA only operates when you have legal capacity and it takes effect when you would like the document to start and ceases:
- when you stipulate; or
- automatically when you lose mental capacity or upon your death, whichever event occurs first.
A EPOA only takes effect when you would like the document to start (eg immediately upon signing of the document or when you lose mental capacity) and ceases automatically upon your death.
Upon your death, a general POA and a EPOA no longer have any legal effect, and at this point in time, your Will takes over.
A ACD only takes effect (can only be used) when you are unable to make your own decisions. This means when you have lost mental capacity, whether temporarily or permanently.
A ACD ceases to have any legal effect either when you have regained mental capacity because you only lost mental capacity temporarily or automatically upon your death.
When can the documents be revoked?
You can revoke (cancel) your Will, Power of Attorney/ Enduring Power of Attorney and Advance Care Directive at any time as long as you have the mental capacity to do so.
What happens if I don’t have the documents?
If you die without a Will then the laws of intestacy in South Australia under the Administration and Probate Act 1919 sets out how your assets are to be distributed after your death and this may not be how you would like your assets distributed.
If you lose mental capacity without having a EPOA in place and someone needs to handle your financial affairs then a family member or close friend will need to apply to the South Australian Civil and Administrative Tribunal (SACAT) for an administration order to be appointed as your financial administrator. Without a EPOA in place, the person appointed as your financial administrator may not be who you want.
If you lose mental capacity without having an ACD in place and decisions need to be made regarding your personal/medical affairs then a family member or close friend will need to apply to the SACAT for an order to be appointed as your guardian. Without an ADC in place, the person appointed as your guardian may not be who you want, and they may make decisions for your personal/medical affairs that are contrary to what you would have liked. Having an ADC in place, ensures your wishes are followed.
It should be noted that applying to SACAT for orders takes time and, in the meantime, your financial affairs and other matters regarding health decisions etc will have to be put on hold until your family obtains the orders and this could lead to adverse consequences.
Generally, as a rule of thumb we recommend that clients should have the documents prepared, however whether you decide to have the documents prepared will depend upon your personal situation.