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Why Plan?
During our lives there are several events that are usually meticulously planned often many months ahead, such as births, birthdays, engagements, anniversaries and marriages. Yet there is one event in life, which many not only do not plan, but actively avoid considering at all, let alone discuss with family and friends. |
More often than not, broaching the subject of our passing or potentially becoming mentally incapacitated is a discussion many family members are not open to engaging in.
Yet dying is an event that is inevitable for each and every one of us – we are all going to die at some time in our life and as difficult or sensitive as it may be, it is our responsibility to have such discussions with family and close friends and to ensure that our final wishes concerning the distribution of our assets and our personal and medical care are understood and honoured by those close to us. The most appropriate time to document this is while we are still fit and healthy.
It is our responsibility to ensure that we have the necessary legal documents in place so that we are cared for as we would wish should we not be able to make decisions about our health care and so that our assets are used in precisely the way we want them to be.
How our assets are used after we are gone is a decision which deserves our full consideration as it will have on-going effects for both the deceased and those whom they leave behind.
Your rights and wishes cannot be known and respected if they are not properly documented. Thus it is important to have documents in place to provide for your future legal, health and financial decisions and to ensure that these are respected by family, attending medical professionals and carers.
If you do not have such documents prepared when they are required, a court or tribunal may need to make decisions for you. Hence, decisions may be made on your behalf that could be against your wishes if you have not planned ahead.
More than ever before, there is a growing awareness in the community of the important need to prepare for a time when we may be unable to make our own decisions. Many people are familiar with a Will as a means of forward planning and for some time in Australia and many other places around the world it has been possible to plan ahead and appoint a person under an Enduring Power of Attorney. Your appointed Attorney can manage your financial affairs and make decisions about your money and property (see more below).
However, there has been no similar way in NSW for you to appoint someone with legal authority to make personal, health or lifestyle decisions on your behalf until the Guardianship Act 1987 (NSW) was amended in 1997.
In Australia (the position in other places around the world will vary slightly), there are currently four main documents for planning ahead. These are:
In the UK this is referred to as a ‘Lasting Power of Attorney – Property and Financial Affairs’ (LPA-PA).
The person who fulfills this function is named differently in different countries e.g. an Enduring Guardian is called a Delegate in Nova Scotia. The document appointing a person to this position will also vary by country. For example, in the UK, the appointment of a person to make health and welfare decisions for you is done by completing and registering a 'Lasting Power of Attorney - Health and Welfare' (LPA-HW) form. This is separate from an ordinary power of attorney (OPA or LPA-PA), which is used by people who want someone to look after their financial affairs.
Note: In some countries such as Nova Scotia, the Appointment of an Enduring Guardian and the Advance Care Directive are done on the same document. The terminology also varies with country, e.g. an Enduring Guardian is called a Delegate in Nova Scotia.
In the UK, the equivalent document is sometimes known as an Advance Decision to Refuse Treatment, an ADRT, or a living will. However, an ADRT ceases to have effect when you appoint an Attorney under the Lasting Power of Attorney regime.
Storage of your planning ahead documents
Once you have completed your documents it is important to:
Anne McR., Australia
NOTE: unless otherwise stated, the information in this document is based on the laws of New South Wales. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute legal advice.
Yet dying is an event that is inevitable for each and every one of us – we are all going to die at some time in our life and as difficult or sensitive as it may be, it is our responsibility to have such discussions with family and close friends and to ensure that our final wishes concerning the distribution of our assets and our personal and medical care are understood and honoured by those close to us. The most appropriate time to document this is while we are still fit and healthy.
It is our responsibility to ensure that we have the necessary legal documents in place so that we are cared for as we would wish should we not be able to make decisions about our health care and so that our assets are used in precisely the way we want them to be.
How our assets are used after we are gone is a decision which deserves our full consideration as it will have on-going effects for both the deceased and those whom they leave behind.
Your rights and wishes cannot be known and respected if they are not properly documented. Thus it is important to have documents in place to provide for your future legal, health and financial decisions and to ensure that these are respected by family, attending medical professionals and carers.
If you do not have such documents prepared when they are required, a court or tribunal may need to make decisions for you. Hence, decisions may be made on your behalf that could be against your wishes if you have not planned ahead.
More than ever before, there is a growing awareness in the community of the important need to prepare for a time when we may be unable to make our own decisions. Many people are familiar with a Will as a means of forward planning and for some time in Australia and many other places around the world it has been possible to plan ahead and appoint a person under an Enduring Power of Attorney. Your appointed Attorney can manage your financial affairs and make decisions about your money and property (see more below).
However, there has been no similar way in NSW for you to appoint someone with legal authority to make personal, health or lifestyle decisions on your behalf until the Guardianship Act 1987 (NSW) was amended in 1997.
In Australia (the position in other places around the world will vary slightly), there are currently four main documents for planning ahead. These are:
- A Will is a legal document that clearly sets out your wishes for the distribution of your assets after your death. Having a clear, legally valid and up-to-date Will is the best way to help ensure that your assets are protected and distributed according to your wishes. Should you die without a Will your estate may be divided according to a Government formula – a formula that may not reflect your wishes and which may cause undue hardship, cost and delay for those to whom you wish to leave your assets. It is important for parents of young children to consider how they would like the children cared for and by whom, should the parents die while the children are still young.
- A Power of Attorney is a legal document that allows you (the ‘principal’) to nominate one or more persons (referred to as an attorney) to act on your behalf. A Power of Attorney gives the person acting as attorney the authority to manage your legal and financial affairs, including buying and selling real estate, shares and other assets, operating your bank accounts and spending money on your behalf.
In the UK this is referred to as a ‘Lasting Power of Attorney – Property and Financial Affairs’ (LPA-PA).
- An Enduring Guardian is someone you appoint to make lifestyle and medical decisions for you when you are no longer capable of doing this for yourself. Your Enduring Guardian may make decisions such as where you live, what services are provided to you at home and what medical treatment you receive, but cannot over-ride your objections to medical treatment, manage your finances, or make a will.
The person who fulfills this function is named differently in different countries e.g. an Enduring Guardian is called a Delegate in Nova Scotia. The document appointing a person to this position will also vary by country. For example, in the UK, the appointment of a person to make health and welfare decisions for you is done by completing and registering a 'Lasting Power of Attorney - Health and Welfare' (LPA-HW) form. This is separate from an ordinary power of attorney (OPA or LPA-PA), which is used by people who want someone to look after their financial affairs.
- An Advance Care Directive sets out your directions including your wishes and values that need to be considered before medical treatment decisions are made on your behalf in the event that you lose decision-making capacity. If you decide you want to prepare an Advance Care Directive, discussions around these issues are best done with people who are important to you together with your doctor. An Advance Care Directive can be attached to your Enduring Guardianship Appointment form. Alternatively, you can direct your Enduring Guardian in your separately written Advance Care Directive.
Note: In some countries such as Nova Scotia, the Appointment of an Enduring Guardian and the Advance Care Directive are done on the same document. The terminology also varies with country, e.g. an Enduring Guardian is called a Delegate in Nova Scotia.
In the UK, the equivalent document is sometimes known as an Advance Decision to Refuse Treatment, an ADRT, or a living will. However, an ADRT ceases to have effect when you appoint an Attorney under the Lasting Power of Attorney regime.
Storage of your planning ahead documents
Once you have completed your documents it is important to:
- Store them in a secure place such as in a safe or with your solicitor and
- Advise the people you have appointed in your documents and key family members where your documents are stored.
Anne McR., Australia
NOTE: unless otherwise stated, the information in this document is based on the laws of New South Wales. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute legal advice.