Updates

Law Institute of Victoria Supports National Power of Attorney Registry Scheme

Making an Enduring Power of Attorney (EPOA) enables individuals to plan for the future, however, as much as everyone has the right to make their own decisions, there may come a time where you do not have the capacity to make your own decisions, whether it be due to an injury or illness.

By making an Enduring Power of Attorney, it allows you to appoint a person or persons who you trust to make certain decisions on your behalf.  You are eligible to make an Enduring Power of Attorney if you are aged 18 years or older and have the requisite capacity to do so.

The Law Institute of Victoria (LIV) has recently introduced their support of a national register where it will provide a reliable source for individuals to efficiently verify that an Enduring Power of Attorney is valid and current, which can minimise the incidence of the Enduring Power of Attorney document being misused for financial abuse purposes.

Far too often we see in practice, a scenario whereby a bank teller is presented with a power of attorney document (even if it has since been revoked or superseded) and happily acts on that basis without seeking to verify that it is, in fact, the current power of attorney document.  The introduction of a national register would certainly prevent such a scenario from occurring.

However, there is debate over the design of the register, as, given that it will contain private and confidential information, such as details of a person’s bank accounts and properties, it will need to deal with the issue of what information can be made publicly available or only made available to a registered user who will then pay a fee to view the document and information.

A similar registry system already exists and currently operates in Tasmania with their Land Titles office, where these documents are available to third parties and there is reliance on the register to then determine validity of the document.

We are in total support of the implementation of such a national registry and we will keep you updated as to any developments in this regard.

The Importance of Having an Up-to-Date Will

We are seeing a disturbing new trend where there are more people dying in Australia without leaving a valid Will.

Which leads us to the next question…do you really need a Will?  A Will is a way for you to provide clear directions as to how you wish to leave and divide up your hard-earned assets on your death.  Without a Will, you cannot decide who will control your affairs on your death, who will take care of your minor children, you cannot make gifts or donations or benefit those people that you wish.  In a blended family situation, dying without a Will cannot often result in expensive and emotionally fraught litigation on that person’s death.

When should you update your Will?

 A new Will should be made in the following circumstances:

  • Acquiring new assets (e.g. a new property);
  • Disposing of assets;
  • Marriage;
  • Separation;
  • Divorce;
  • Addition of new family members (birth of children or grandchildren);
  • Children becoming adults;
  • After the death of a beneficiary listed in your Will; and
  • The commencement or disposal of a business interest.
  • What happens if you die without a Will?

 

You are deemed to have died intestate and the succession laws of the state or territory in which you are considered domiciled, will determine the succession of your assets.

For example, if you die intestate in Victoria:

  • In a nuclear family scenario (husband/wife + children to that relationship) = all estate goes to surviving spouse in first instance
  • In a blended family scenario (second spouse and children not of that spouse) =

second spouse receives a statutory legacy (currently $451,909), all personal chattels and half of the balance of the estate with the children from another relationship to share in the remaining half of the estate

  • Complex division if more than one spouse/partner of deceased and children

It is advisable to have your Will reviewed at least every 5 years.  It does not mean that you will necessarily have to incur the expense in preparing a new Will, but it is a good timeframe in which to check in and see that your Will is still appropriate in your present circumstances.

The Government’s My Health Record and Estate Planning

There has been a lot of media publicity of late around the issue of whether or not people should opt in or out of the Government’s somewhat contentious My Health Record which comes into full effect on 31 January 2019.

The My Health Record is an online summary of your key health information, which can be viewed online, by yourself and any of your health providers.  You can manage your My Health Record and even add the details of an advance care plan to such record.

You will be able to set up privacy and security settings to enable or restrict certain people and/or health providers from having access to some or all of your health history and/or any documentation.  Importantly, you will be able to see who has accessed your My Health Record.

From an estate planning perspective, the My Health Record is another form of digital asset that you will now need to decide who you give access to on your death.

In addition, if one of your attorneys under a Power of Attorney document has access to your My Health Record and notes that a doctor has stated that you have lost capacity to make decisions for yourself, it may invoke the operation of a Power of Attorney much earlier than it otherwise would have, especially if the extent of your capacity has not yet been fully ascertained.

CONTESTING A WILL AS A ‘PARTNER’ AND CLAIMING CENTRELINK ALSO – BE AWARE!

On 17 October 2018, a great-grandmother in Geelong, Victoria, Noel Newling, was sentenced to two years and 10 months jail for concealing her relationship with a wealthy share trader for more than 20 years, whilst claiming a single pension.

The woman was forced to concede her relationship status in a bid to contest her partner’s Will who died in 2016 with an estate worth in the order of $4 million.  A judgment has not yet been handed down by the Supreme Court of Victoria in respect of this case.

The Human Services Minister, Michael Keenan has advised that irrespective of a person’s background or age, there will be consequences.

Many people who contest a will are those who claim they were in some form of domestic or de-facto relationship with the deceased person at the time of that person’s death.  Often, however, such claimants have been claiming Centrelink pensions for many years as a ‘single’ person.  Similarly, the deceased person may have also been claiming a ‘single’ pension during his or her lifetime.

Therefore, bringing a claim for further provision from an estate should be carefully considered in circumstances where such a fraud has been committed.  Not only could it result in monies being repaid to the government by the claimant but also that person being jailed, but also, monies could become repayable by the deceased person’s estate to Centrelink.  Nobody wins!

THE IMPORTANCE OF MAKING A WILL HIGHLIGHTED – NSW MAN GRANTED OWNERSHIP OF A HOME UNDER A DECEASED ESTATE BASED ON SQUATTING LAWS

On 30 October 2018, the Supreme Court of New South Wales granted a Sydney Property Developer, Mr Bill Gertos, ownership of a $1.7 million home in Ashbury, New South Wales, based on NSW squatter laws.

The interesting part is that the home was originally owned by a man named Henry Thompson Downie, who died in 1927 without leaving a Will.  At the time of Mr Downie’s death, the Ashbury property was rented out to a tenant, who paid a nominal rent, until the time of her death in 1998.

Mr Gertos stumbled across the property after the death of the long-term tenant and observing that it was uninhabited and delipidated, he decided to take possession of the property and undertake various works and improvements to the property.

Although distant relatives of Mr Downie recently attempted to contest Mr Gertos’ application for legal ownership of the property, the NSW Supreme Court granted ownership to Mr Gertos based on the fact that Mr Gertos had essentially ‘squatted’ at the property for nearly 20 years and, under NSW adverse possession laws, after 12 years of essentially inhabiting a property, that person could claim adverse possession of the property.

If Mr Downie had left a Will which appointed certain people, such as family members, friends or independent trustees, to be the executors and trustees of his estate on his death and, further, he had properly dealt with the issue of what would happen to the property on his death, it is very unlikely that any person, such as Mr Gertos, would have been in a position to just walk by the property and gain ownership!

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