Wills, Enduring Powers of Attorney and Advance Health Directives FAQs

What is a will and why do I need one?
A will is a document which provides for the distribution of your assets upon your death.
 
There are many reasons why you need a will.  For example, if you die without a will, your assets will be distributed according to a statutory formula and not according to your wishes.
 
It is also important that your family knows what you want to happen when you die – not just how you want your assets to be distributed, but your funeral arrangements, who you want to act as guardian for your children and who you want to administer your estate.  Without a will, there will be no formal, enforceable record of your wishes.
 
Since the introduction of compulsory superannuation in 1992, estate planning has become much more complicated.  A will allows you to decide what will happen to significant assets such as superannuation and insurance benefits.  
 
Depending on your circumstances, we may recommend you include a testamentary trust in your will.  There is also sometimes a particular need for a person to provide for family members with special needs, children from previous relationships or former partners.  Unless a will is made keeping these particular requirements in mind, the people who most need your financial support may not be properly provided for.
 
What is an enduring power of attorney and why do I need it?
An enduring power of attorney allows another person to make decisions – both financial and personal - on your behalf.  This could include decisions about living arrangements, the sale and purchase of property, provision of care – any decision you would otherwise make for yourself.
 
You can decide when the power for financial matters commences - immediately or at some stage in the future – for example, in the event you were to lose capacity to make your own decisions.  The power for personal matters can only commence if you lose capacity to make your own decisions.
 
If you lost capacity and did not have an enduring power of attorney, things could be very difficult for your family if decisions needed to be made on your behalf. For example, an application might need to be made to the Queensland Civil and Administrative Tribunal to do something as straightforward as allowing your partner access to funds held in an account solely in your name.
 
It is possible for your family to make limited health decisions on your behalf, even if you don’t have an enduring power of attorney.  But this can be complicated by lack of agreement amongst family members or disagreement with health providers.  The best way to ensure that your wishes will be respected is to execute an enduring power of attorney and appoint attorneys you are confident will act in accordance with your wishes and in your best interests.
 
What is an advance health directive and why do I need it?
An advance health directive is similar to an enduring power of attorney, but provides very specific instructions to your health attorneys about the treatment you wish to have if you suffer particular health problems. The directive is prepared with the involvement of your doctor, so it can be very precise about what treatment you do and do not wish to receive in the event you cannot communicate those wishes yourself.
 
Having an advance health directive can give you confidence that your family and health providers will be in no doubt as to your wishes about end-of-life decisions and that your wishes will be respected.
 
How much does estate planning cost?
The cost of estate planning and the preparation of necessary documents will depend on the extent of your assets, the complexity of your finances and your personal situation.  Once we have had the chance to meet you and discuss your situation and needs, we will be able to give you an idea of the likely cost.
 
Our costs will be reasonable – we will discuss them with you in detail before you instruct us to act on your behalf and will enter into a Costs Agreement with you.  We strongly recommend you seek independent legal advice about the Costs Agreement before you sign it.
 
Can I plan my estate myself?
Yes – many people can, and do, buy a will kit or prepare their own wills, enduring powers of attorney and advance health directives.
 
However, estate planning is complicated.  There are many issues to think of – tax, superannuation, family obligations, business structures, blended families, testamentary trusts – and many ways in which your affairs and your estate can be affected in unexpected or unintentional ways. The best way to achieve the outcome you are seeking is to consult an expert.
 
What happens once I have made a will/enduring power of attorney/advance health directive?
Once you have executed all the documents, we will be happy to keep the originals in safe custody until they are required.  We will also give you copies to keep with your records.  
 
It is important that the people you have appointed to act as your executors and attorneys are aware of their appointment and where the original documents are being kept.