Category: Wills & Estate

What does an Advance Care Directive contain?

Advance Care Directives (‘ACDs’) are one of 3 testamentary documents commonly utilised by clients, along with Wills and Enduring Powers of Attorney. ACDs are designed to allow individuals to make plans for their future care and to exercise freedom of choice during serious illness and end of life care. We often recommend to clients that they draft and sign an ACD because Australia’s population continues to rapidly age and medical and technological advances prolong life. In this blog we will explain why we make this recommendation. 

Firstly, let us look at what exactly an ACD does. It allows the person undertaking the ACD to appoint one or more Decision Makers, to make choices on the person’s behalf, with regards to their medical care. Decision Makers can be appointed separately (meaning that one person is appointed, then if they are unable or unwilling to act, a different person will be appointed), or jointly (meaning they must make decisions together). 

The ACD contains 6 ‘values and wishes’. These areas ask the person to explain things that are important to them and that they want taken into consideration when decisions are being made for them. They can also make requests for the kind of health care they would prefer to receive or not receive, and their wishes for how to handle remains, such as burial, cremation and/or organ donation. 

 These 6 clauses are not binding. They explain the persons wishes, but they are exactly that. The Decision Maker is required to adhere to these wishes as much as possible, but where it is impractical or impossible, they are not sanctioned from making decisions outside of, or even contradictory to, the wishes. It is therefore common that the wishes explained in these clauses are not demanding in nature, but more explanatory of how you would like to be cared for, and what considerations are most important to you when being cared for. 

 The ACD also contains one binding clause, a binding refusal of healthcare. This clause allows the person to explain what healthcare they do not want to receive, and this refusal will be binding on the Decision Makers and any medical professionals providing care. Generally, this clause is used to bindingly refuse ‘life-sustaining treatment’, in the circumstance where there is no chance of recovery or other treatment (such as the terminal phase of terminal illnesses, persistent comas, etc.). However, whilst this is the standard use of this clause, it is not the only option and any healthcare that may be legally refused were the person capable of making the decision themselves, may be included here. 

 So in summary, the document consists of 6 non-binding clauses containing wishes and considerations for Decision Makers to base their decisions on, and 1 binding clause that refuses specific healthcare in specific circumstances. 

The types of things people insert in their ACD are: 

  • It is important to me to continue my relationship with family and friends 
  • It is important to me to be independent 
  • I wish to be kept pain free 
  • I wish to remain at home with home care for as long as possible. If necessary, I will enter supported care (or “I am happy to enter supported care”, or any variation of this) 
  • I wish to be cremated (and specifications regarding scattering or keeping of ashes)/I wish to be buried (with details of a plot, if necessary) 
  • I wish/do not wish to be an organ donor 
  • I wish to have access to the outdoors 
  • I wish to continue playing sport for as long as possible, or to be involved with sport for as long as possible 
  • I wish for music to be playing in my home 
  • I wish to be kept well groomed and presentable

These are just some of the things included. As you can see, they are varied and can be as detailed or vague as you choose. Some people ask to be surrounded by plants, or to be clothed a specific way. It is an entirely personal choice and serves as a guide to whomever is caring for or making decisions for the person. 

We hope this sheds some further light as to the purpose of an ACD and its potential application. Whilst some of it may seem somewhat frivolous, it can be particularly helpful to Decision Makers to be aware of what the person for whom they are deciding, considers important. Furthermore, the binding refusal of healthcare clause is especially important in letting those caring for you (family or medical professionals) know how to handle such a difficult situation. 

Our team has extensive experience in this area so if you have any further questions, or wish to discuss any of the above, please feel free to contact us on (08) 7001 6135.  

 


Am I too young to make a Will? The simple answer is no.

In South Australia, the minimum age to execute a Will is 18 years of age, yet majority of 18 year olds have not given a single thought to having a Will. There is a stigma that a Will is only for elderly people, but what happens when a person in their 20’s, 30’s or 40’s has an accident resulting in death, or becomes ill and passes away unexpectedly? Not having a Will can result in further emotional stress of the family in deciding how assets are distributed, and sometimes financial hardship for the family can result, adding to the pain of suddenly losing a loved one.

Deciding to create a Will is a personal decision, and often one that most 18 year olds do not think about. Reasons for not thinking about a Will will often be led by the train of thought that ‘I don’t have any assets to leave behind, and so a Will is not necessary’. However, any savings or heirlooms, or a car, are all important aspects of your life that can be included in a Will.

Without a Will, and if the deceased is unmarried and has no children, the assets will typically go to their parents. However, a Will means that the assets to be distributed can be specified to go to another person or group of people, such as a charity. If you don’t create a Will, the privilege of being able to distribute your assets yourself is lost. The benefits of paying to have a Will executed by a solicitor greatly outweigh the legal and tax costs if (a) no Will exists, or (b) the Will has been created using DIY Kit and is ruled invalid due to a mistake.

We know that deciding upon making a Will is a very adult and personal decision, and an often uncomfortable situation – no one likes having to firstly consider their assets (or lack thereof), nor consider the circumstances surrounding their own eventual death. For 18 year olds, the prospect of having to analyse what little assets they may have is a stressful process, and a Will may be not be deemed necessary until further down the track. However, creating a Will now will save a lot of financial pain and stress in the future, and you can have peace of mind knowing exactly where your assets will be distributed.

You are never too young to create a Will, and our experienced Adelaide lawyers specialise in executing Wills. Give us a call today on 08 7132 5636 to discuss your options.


What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document that gives another person the power to make financial decisions on your behalf. This includes, buying and selling property, accessing all your bank accounts and voting at meetings.

This document operates only whilst alive, and can either be effective immediately upon execution, or only when you are unable to manage your own financial affairs.

If you don’t have an Enduring Power of Attorney the Guardianship Board may have to appoint a financial manager to make these decisions for you. The person or organisation appointed as your financial administrator will not necessarily be who you would have chosen. This may be stressful for those involved and can cause considerable conflict and anguish among family and friends concerning who is appointed to make decisions on your behalf.

You can appoint anyone aged over 18 to be your Attorney. We recommend that this person be someone you can trust entirely, to act in your best interests at all times. Ideally, we recommend you choose a trusted spouse or relative who is capable of handling financial matters and knows your affairs.

Stanley & Co. Lawyers is conveniently located in Adelaide. Come and see us for a confidential no-obligation chat with one of our Adelaide Lawyers.


Where should I keep my original Will?

Your original Will should be kept in a safe place where it cannot be damaged or tampered with. Further, you should never write on it, staple or unstaple it, put a paper clip in it or mark in in any way. Problems may arise after your death, if there are signs that your Will may have been tampered with.

It is a good idea to either give a copy to your Executor, or let your Executor know where you have placed the original Will. All too often, difficulties arise in locating the original Will.

At Stanley & Co. Lawyers, if we have prepared your Will, we offer you the option of storing it in our Deeds room located in Adelaide. Our Deeds room is secure and fireproof. This service is free of charge to you.

Call us on 08 7132 5636 to speak directly with an experienced Wills Lawyer in Adelaide.


What is an Advance Care Directive?

An Advance Care Directive came in to effect on 1 July 2014 and replaces the following documents:

  • Enduring Power of Guardianship;
  • Medical Power of Attorney; and
  • Anticipatory Direction.

It allows you to:

  • Write down your wishes, preferences and instructions for your future health care, end of life, living arrangements and personal matters; and/or
  • Appoint one or more Substitute Decision-Makers to make these decisions on your behalf, if you are unable to make them for yourself.

An Advance Care Directive only operates when you lose capacity. This loss of mental capacity may occur, for example, because of Dementia at age 60 or a car accident at age 20. It can happen to anyone at anytime. We have seen it firsthand.

It is important to remember that Advance Care Directives are solely relevant to health and lifestyle decisions (not legal or financial).

Having all of your healthcare wishes clearly made known will save your family the stress and burden of trying to decide what you would like to happen in such a situation.

We have capped our fee for an Advance Care Directive at $330.00 (inc GST).

Call us on 08 7132 5636 to speak directly with an experienced Wills and Estates Lawyer in Adelaide.


What is a Will and why do I need one?

A Will is a written legal document that operates upon your death. It states who is to receive your property when you die. Assets can include residential or commercial property, bank accounts, cash money, motor vehicles and personal items.

Your Will will also allow you to appoint a person of your choosing to manage your affairs after your death. This person is called the ‘Executor”. This person/people will be entrusted with distributing your property, as you have described in your Will. He/She has a very important responsibility and so your should choose them wisely!

If you don’t have a valid Will, you are said to have died “intestate”. Your assets will be distributed according to the formula set out in the law. You will not get to choose who is responsible for managing your assets after death or to whom your assets are distributed. There is a risk that you may not agree with how the law deems your property to be distributed and therefore, your property may be gifted to people not of your choosing.


Why do I need Asset Protection? What do my Assets need protection from?

You have probably worked hard for the majority of your life. You have accumulated assets that, one day, will be passed to your loved ones upon your death. Asset Protection involves putting together the appropriate legal structure to shield these assets from:

  • potential legal action;
  • claims from creditors;
  • marriage breakdowns; and
  • bankruptcy (just to name a few!)

You MUST ensure you have the right structures in place so you can be certain what you’ve worked hard to accumulate is fully protected.

Let’s take a marriage breakdown for example. All too often, we have clients telling us that their husband/wife may remarry after their death and they don’t want his/her new husband/wife to have the benefit of their estate. How can they ensure that only their Wife and kids get the benefit of all their hard work?

At Stanley & Co. Lawyers we can assist you in preparing your Will with this in mind. We can draft your Will in such a way that enables your son to gain the benefit of your life’s hard work, but that these assets not be part of the marital asset pool and not be available for distribution, should their marriage breakdown.

Call us on 08 8423 4546 to speak directly with an experienced Wills and Estates Lawyer in Adelaide.


Can I make a Will myself or should I have a lawyer make it for me?

A Will is your only method of communicating your wishes after your death. Therefore, it needs to be carefully drafted by a Lawyer, so as to ensure your wishes are properly documented and valid. These are some risks that may arise if you don’t have a properly prepared Will (by a lawyer):

  • The court may deem it invalid if it does not comply with the strict requirements of the Wills Act (eg – improperly signed and witnessed);
  • The names of executors or beneficiaries being incomplete leading to confusion and subsequent delay;
  • The Will-maker not having disposed of all of their estate, therefore leading to a partial intestacy (which means the undisposed part of your estate will be treated as if you don’t have a Will at all); and
  • The testator gifting property that they don’t legally own, and therefore, not capable of being gifted, leaving that beneficiary with potentially nothing.