Estate and future planning
About this article
This article provides general information for retirement village residents about matters that should be addressed while they have legal mental capacity, and also provides information that may be relevant to matters after death.
We would like to think that when the time comes, when we are unable to deal with our own affairs, we have made it as easy as possible for the person taking on that job, and that our wishes will be followed and respected. For that to happen we need to put in place a number of things:
Get proper legal advice
You should obtain legal advice from a person properly qualified in the relevant field – for example, see a solicitor about making an enduring power of attorney, and a last will and testament. These documents are vitally important so to be effective, they must be properly prepared. You certainly do not want issues with your estate by not having a person to make legal decisions for you, if it becomes necessary.
Enduring Power of Attorney
An enduring power of attorney is a formal document giving another person (attorney or donee) the authority to make legally binding decisions on your behalf (principal or doner) even if you become unable to make your own decisions, e.g. if you have failing cognitive health or lose capacity to make decisions. Put simply, unlike a general power of attorney, power given to the attorney under an enduring power of attorney continues even after the principal has lost legal decision-making capacity.
You must find someone you can trust to handle your affairs.
You must decide what powers (financial, personal/health or both) you are giving the attorney. You may decide to limit the occasions when the financial powers may be used by the attorney – for example, only after you lose capacity to make a decision.
For financial matters, an enduring power of attorney continues until it is revoked.
For personal/health matters an enduring power of attorney continues so long as the principal is incapable of understanding the nature and foreseeing the effects of a decision, and of communicating that decision.
A power of attorney is revoked immediately, on the death of the principle.
Advanced health directive
An advanced health directive is a formal way to give instructions about your future health care. It comes into effect only if your cognitive health deteriorates and you lose capacity to make your own decisions.
In your directive, you can give specific instructions about certain medical treatments, such as whether you want to receive life-sustaining measures—such as tube feeding or resuscitation—to prolong your life.
You can also outline the quality of life that would be acceptable to you. For example, you might ask that life-sustaining measures be withheld or withdrawn in certain circumstances.
A person must have decision making capacity when they make an advanced health directive.
A will must be made before a person loses mental capacity to make a decision. The Court may consider a will not valid, and hence, not grant probate, if the person making the will was, at the time, not mentally capable of doing so.
There are various legal and financial issues that need to be managed, not to mention the extra burden and stress on the family, if a person dies without a valid will. Also, it will take longer and cost more to finalise the estate.
If you want to make a will or update an existing will you may consider seeing a solicitor (for a professional fee), the Public Trustee or use a form and instructions from the internet or from a stationer. Bear in mind there are risks in doing it yourself.
When preparing a will, you must state the name of the personal representative (executor) and the beneficiaries, and the way you wish your estate to be distributed. It may not be prudent to nominate a family member or friend as your personal representative, even though professional fees may be avoided, but the decision is yours. It is also advisable that where a professional personal representative is nominated, they practice in retirement villages law.
Do not have a person named in the will to act as a witness to a signatory to the will.
The personal representative is responsible for properly administering every aspect of your estate once you die. There’s a lot involved, including applying for a grant of probate.
The person you nominate as your personal representative needs to know where the originals of your important documents are kept (including the name of the solicitor where your will is filed).
The original will must be kept in a very safe place.
Grant of probate
Probate is the Supreme Court of Queensland’s official recognition of a will as legally valid and that the person named as personal representative is authorised to act in that capacity.
There are various requirements to be met and various forms must be completed and submitted to the Court. Fees are payable when the application is made.
The grant of probate protects the scheme operator by ensuing the exit entitlement is paid to the person named as the personal representative in the will of the deceased.
The Retirement Villages Act 1999 and your residence contract may require the personal representative of your estate to make decisions and/or agreements with the scheme operator about reinstatement work and renovation work of your unit, and the selling process.
In some cases, the grant of probate for the estate of the last deceased resident of an accommodation unit, may be required to be shown to the scheme operator before the exit entitlement is paid to the personal representative.
Public Guardian – publicguardian.qld.gov.au
Public Trustee – pt.qld.gov.au or phone 1300 360 044
Queensland Law Society – qls.com.au/For_the_community
Qld Government – qld.gov.au – Use key words in the search facility – ‘enduring power of attorney’, ‘making a will, ’grant of probate’, ‘executor of a will’ or ‘advanced health directive’.