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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 or are about to lapse. Have you worked out how to get out of here alive or just found the secret to Eternal Life?
A freak accident happens and you become incapacitated as a result or you suffer from a severe stroke and you take months to regain consciousness and may eventually 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. However, for your estate plan to remain valuable you need to turn resistance into resilience and get those sticky notes out of the cupboard to act as a constant reminder of why it is important to ensure that your estate planning is up to date.
Over the years attorney powers have changed a lot. This is due to legislative changes and developing case law. For instance, previously you were only able to appoint an attorney to deal with your money and other property owned by you. Now, the law allows you to also appoint an attorney to act for you in relation to your personal and health matters.
Let’s say you have an existing super and life insurance death benefit nomination which lapses after three years. At the time when you prepared your binding death benefit nomination you carefully considered the chosen percentages you have written next to the names of your three dependant loved ones.
Then something terrible happens to you and for the next few years you are incapacitated as a result. How can you ensure that your wishes in relation to your super and life insurance continue to be respected and that your enduring attorney is able act to in your interests? Also, does your Power of Attorney permit you to deal with property you own with your spouse/partner?
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.
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.
For others in your position it may be necessary to restrict an Enduring Power of Attorney from creating a new binding death benefit nomination or restricting their powers in areas where you foresee some risk.
The careful use and drafting of attorney powers and conflict clauses are becoming more important given the recent attention it received by the courts. 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 complete.
Contact Malcom McColm at MMLaw today.
The information in this document represents general information and should not be relied on for your specific circumstances. If you require legal advice and assistance on the matters contained or associated in this document you should contact MMLaw. Please contact Malcolm McColm.
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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.