Get your life in order!

While it may be uncomfortable to think about incapacity or death, proper planning offers peace of mind by ensuring your wishes are respected and people who you trust are appointed to manage your affairs. It can also ease the burden on loved ones during difficult times by clearly outlining how to and who will manage your affairs. Proper planning is not just about distributing your assets, it is about making sure your financial, legal and personal needs are addressed according to your wishes.

A more comprehensive consideration of the various mechanisms are set out below.

Wills

A Will outlines how your assets should be distributed after your death. It also specifies who will inherit your property, who will care for your children under 18 years old, and who will manage your estate (the executor). A well drafted Will ensures your wishes are respected and helps to minimise disputes among family members and possibly include acknowledgements and a response in advance to claims against your estate. If you pass away without a Will, your assets will be distributed according to a formula set out in legislation, which may not align with your wishes and could cause unnecessary stress for your family.

If you have a Will, it is essential to review it every few years to ensure it reflects your current wishes, especially if you have married, divorced, or are planning to do so. In Western Australia, marriage and divorce revoke a Will, but special provisions can be included to prevent this.

Enduring Power of Attorney (EPA)

An EPA appoints someone to make financial and property decisions on your behalf if you no longer have full legal capacity to do so. The person you appoint, your attorney, is given the power to handle matters such as pay bills, manage investments and sell property. This power can be granted to commence from when you sign the EPA or to take effect only from when you lose capacity.

If you do not appoint an attorney but lose the capacity to manage your affairs then to enable this to occur, a family member or someone else will need to apply to the State Administrative Tribunal (Tribunal) to appoint someone to fulfil this role. If no one is willing or suitable, the Tribunal may appoint the Public Trustee to take on the role. The Public Trustee is an independent statutory officer created under Public Trustee Act 1941 (WA).  Dealing with the Public Trustee creates considerable angst and inefficiency for family members.

Enduring Power of Guardianship (EPG)

Similar to an EPA, an EPG appoints someone to make important personal, lifestyle and treatment decisions on your behalf if you become incapable of making those decisions. This includes decisions about your living arrangements, support services and treatment you receive. You may appoint more than one guardian jointly or as a substitute if your guardian is unable to continue in the role. If you do not appoint a guardian, the Guardianship and Administration Act Act 1990 (WA) (Guardianship Act) provides a hierarchy of people who can make treatment decisions on your behalf, including your spouse, adult children, parents and siblings.

Advanced Health Directive (AHD)

An AHD allows you to make decisions in advance about the treatment you would like to receive if you become sick or injured and are unable to communicate your wishes. This document provides instructions on whether you want life-sustaining treatments, organ donation preferences and other aspects of your health care for only specific instances or up to a wide and varied range of circumstances. An AHD will only come into effect if it applies to the treatments you have specified have arisen and you are unable to make decisions about your treatment at that time. Amongst other benefits, it ensures medical professionals and family members follow your wishes regarding your end-of-life care.

Without an AHD the manner in which decisions on these matters are made is determined by the relevant family members as provided in section 110ZD(4) of the Guardianship Act. If you do not have an AHD and the treatment is urgently required, the relevant health professional will make the decision for you. If it is not urgent, the health professional will refer to those family members to make the decision.

If you have not yet started to plan for your how your affairs should be dealt with into the future or your estate distribution or would like to review your existing Will, please contact us. We can guide you as to the alternatives available and prepare the necessary documents to ensure they are accurate and reflect your wishes.