Are Your Existing Plans Worthless?

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You haven’t reviewed your Enduring Power of Attorney in years and your super and life insurance policies death benefit nominations may have lapsed.

An unexpected pandemic appears and you are in lockdown and unable to do what you usually would do.

Or an accident happens and you become incapacitated as a result or you suffer from a severe stroke and you take months to regain consciousness and die. What happens in the interim to your financial and personal affairs when you are unable to attend to them yourself?

Our brains struggle to think about such misfortunes and, more so, the implications of these terrible events. If your estate plan is to remain valuable you need to turn resistance into resilience.

The laws relating to Powers of Attorney have changed in recent years – due to legislative changes and developing case law.

Originally you were only able to appoint an attorney to deal with your money and other property owned by you. But you can also appoint an attorney to act for you in personal and health matters.

The Supreme Court has recently decided that in limited circumstances your Attorney can make a Superannuation Binding Death Benefit Nomination for you if you have lost capacity.  This can be very useful.

The court, in a recent decision emphasised the need to carefully consider your individual circumstances when preparing an Enduring Power of Attorney. Complications may occur if attorney powers are not properly defined. Sometimes attorney powers are not wide enough and sometimes they need to be restricted.  The lesson is clear – a standard store-bought Power of Attorney or one downloaded from the internet is not a “one size fits all” document.

Your circumstances may be of such a nature that it will be necessary to expressly authorise your Enduring Power of Attorney to extend your existing binding death benefit nomination and to also forgive any conflict transaction by your spouse.

The careful use and drafting of attorney powers and conflict clauses are critical given court decisions. At MMLaw we will gladly assist you to identify any gaps in your existing Enduring Power of Attorney, alternatively help you to put one in place if haven’t got to it yet. We also offer expert advice in binding death benefit nominations and preparing Wills to ensure that your estate planning is effective.

Contact our team today.

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The content published in this Blog is in the form of academic papers and the opinions expressed herein are generalised. The information provided is for educational purposes, not specific legal advice.

The application of any principles referred to can alter from case to case and accordingly you should seek independent legal advice in respect of your individual circumstances.


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