Making decisions for ourselves is one of the most important capabilities we have. Few of us, want others to do this for us without our guidance or input. This is why it is critical to have both a Will and Enduring Powers of Attorney (EPA) in Place. But what if you don’t?
A Will lets your executor know who you want to receive what from your estate, who do you want to benefit and how. If you don’t have a Will then the Administration Act will apply, and your estate will be divided up according to the Act. What this means if you have a partner or spouse is that they will receive the first $155,000 of your estate plus your chattels. The remainder of your estate is then divided into thirds and your partner/spouse will receive one third and any children you have will share in the remaining two thirds. If you are still married (not officially divorced) and have a new partner, then the share your new partner would receive is shared with your former spouse.
What if you lose capacity (either temporarily or permanently) but you don’t have Enduring Powers of Attorney? Well, the only option is an application to the Court for PPPR Orders to have a Welfare Guardian and/or Property Manager appointed. Making this application is typically required at the very time you already need someone in place, who has the legal authority to make decisions for you. The PPPR Court process will cost far more than the cost of putting Enduring Powers of Attorney in place and can take weeks or months for someone to be appointed.
It may also result in an outcome you might not have chosen yourself. In addition to this, the costs are ongoing. PPPR Orders only last 3 years (in some cases 5 years) before they have to be renewed with a new application, and in the interim, the Public Trust is required to audit the Property Manager’s accounts at both 3 months after the order is made and then annually. The cost of this audit will depend on how well things are managed and the extent of the Estate, however the Public Trust charges is $247.27 incl. GST per hour to do so.
We strongly encourage every adult to have both a Will and Enduring Powers of Attorney in place. Once in place, then you need to review them when circumstances change and/or 5 yearly. If you would like to discuss your situation, feel free to give us a call.