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If you or a family member become ill, and the situation may result in actual incapacity that physically or mentally prevents you from looking after your own affairs, then the law will look for someone else to take charge of your affairs for the duration of your incapacity (it could be temporary, or permanent).
Unfortunately, unless you have your legal affairs in order, BEFORE such incapacity takes place, you may find out that it is too late afterwards to do anything about it. See our
True Story on Who is really looking after me?
What happens if I don’t do anything?
If you become mentally or physically incapacitated, and you do not have an Enduring Power of Attorney in place that selects a trusted family member or friend, then the law does not automatically give this right to your next of kin. Whilst the next of kin may have a right in relation to life and death matters (eg. Should the life support be taken off, etc), this right does not automatically extend to other personal and financial issues (such as who is allowed to pay the bills, which hospital should be used, should the family home be sold and a more appropriate one be purchased, etc). In the absence of an Enduring Power of Attorney, these decisions will be passed to the Qld Government Public Trustee.
They will probably consult family members as to what to do, but ultimately they will make the decisions. They will also charge for their time in looking after these affairs.
Once you become too ill to look after your own affairs, it may be too late to do anything about it. This is because the law requires you to be ‘of sound mind and capacity’ when you sign documents and papers. For instance, you will be considered incapable , and therefore any document you sign will be invalid, if at the time you could not comprehend what you were doing or what you were signing.
It would also be prudent for you to have a Will in place, in case the worst happened and you were to pass away. If you did not have a Will in this situation, then most States have laws in place (usually called rules of Intestacy) that will dictate how your assets are to be distributed. Just the administrative process alone is made so much more difficult, expensive and time consuming (as your family would need to get a Court order in place of the Will), and the rules that the State specify may not reflect what you would have wished.
If you do have a Will but it is hopelessly out of date, it can create an even greater nightmare, because the door is left open to their estate being contested by aggrieved parties, or worse, some loved ones are short changed.
What do I need?
Whilst you are still capable, you need to get in place:
Tips on what to do
Who you select for your Enduring Power of Attorney and your Will really depends on your circumstances. Here are some of the more common situations:
Young Adult
We find that most young single adults leave their estate to their parents or a combination of their parents and their brothers and sisters. Parents are also normally selected to look after your affairs in your Will (called
Executors) and in your Enduring Power of Attorney (called
donees).
Married and de facto couples
Many couples decide to select each other to be the Executor of their respective Wills, and often do ‘mirror image’ Wills – often leaving everything to
each other, believing that the surviving party will adequately provide for the children. This may not suit you if you have other dependants, such as children from a previous relationship.
When it comes to selecting guardians, we find that people often select a close family member, such as a brother and sister-in-law, or close friends that have a similar philosophy on how to raise children.
With respect to the Enduring Power of Attorney, many couples also choose
each other to act as their donee in the event that they become incapacitated.
Senior Citizens
If you have a partner in reasonably good health, then you may wish to select them in the first instance as Executor and as the primary beneficiary. You will need to look at providing for any children, even if those children are already grown up and looking after themselves. Cutting a child out in a Will can be a dangerous thing to do, as it leaves the door open for that child (even though an adult) to contest the Will. There are ways to minimize these risks. For more information on this, see our
True Story Cutting out a Relative.
For the Enduring Power of Attorney, it is a good idea for you to select your partner in the first instance, provided that they are in good health, and then select a close family member such as a trusted and responsible child (who must be an adult) to act in the event of your partner’s incapacity. In this way, the decision about your health and finances are kept within the family, rather than being given to an outside entity such as the Public Trustee. When selecting these persons (called the ‘donee’), you should look for the following attributes:
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someone that you trust (you may love all of your children, but not necessarily trust each one!)
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someone who is responsible and has financial understanding
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someone who is in touch with your wishes
Ultimately, who you want to select and in what combination is up to you. If your affairs are pretty standard, for instance if you want to leave everything to your spouse, and then if they die to your children of that
relationship, then you should consider our online legal Will service. This service is appropriate for straightforward affairs. However if you have a more complex set of circumstances, then please consider our full service option.
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