Wills & Powers of Attorney

What is Will and why should I make one?

A will is a legally-binding document that provides how a person’s estate will be divided up upon their death. A will is, in effect, a statement of your wishes. When you create your will you appoint an executor or executors. The executor is legally responsible for dividing up your estate in accordance with these wishes. This is an important role and so you should make sure to appoint someone who is honest, trustworthy and organised.

If a person dies without a will, they are considered to have died ‘intestate’ and the laws of the state determine who will inherit your estate and in what proportion.  In this situation, there is no guarantee that this distribution will be in accordance with your wishes and it can result in conflicts regarding ‘what you would have wanted’.

Without a will, the allocation of your estate can become an unnecessarily lengthy and distressing process. A valid will offers you the comfort of knowing that your assets will be managed efficiently and distributed as you desired.

What is an Enduring Power of Attorney and why should I make one?

An enduring power of attorney is a legal document in which you appoint someone (an attorney under power) to manage your assets and financial affairs whilst you are alive. Although everyone has the right to make their own decisions, anyone can suffer an injury or illness that makes this impossible or travel overseas and run into unexpected trouble. By making an enduring power of attorney, you can choose who will make these important decisions on your behalf. This should be someone that you trust and that understands what is important to you.

Having a power of attorney in place offers you the security of knowing that there is someone that can handle your financial affairs if you were unable do so yourself. However, you cannot make an enduring power of attorney after you have lost capacity. All power of attorney’s must be signed whilst you have the capacity to understand what the document is and to agree to its conditions.

Should I appoint a Medical Treatment Decision Maker

We all have the right to make our own medical treatment decisions. However, injury or illness may mean that you are unable to make these decisions, either temporarily or permanently. Under Victoria’s Medical Treatment Planning and Decisions Act 2016, it is no longer possible to appoint someone under an enduring power of attorney to make medical decisions on your behalf. Instead, you can choose to appoint someone as your medical treatment decision maker.

This individual will have the specific power to make decisions related to your healthcare and medical treatment. Your medical treatment decision maker is legally bound to consider your medical preferences, values and beliefs, when making their decisions.

If you have not appointed a medical treatment decision maker, the Medical Treatment Planning and Decisions Act provides a hierarchy of people who are authorised to act in this role. However, the person authorised may not be the person you would have chosen to act on your behalf. Appointing a medical treatment decision maker means that you can control who may make these decisions.