Regrettably for most of us, there will come a time when, for one reason or another we can no longer make decisions, important decisions, for ourselves and we need to consider Elder Care issues early.

Recent television reports on television have raised the profile of the problem as has the recently setting up of a Royal Commission into Elder Care Issues

The question arises how to I best control what happens to me when I am not able to make relevant decisions? These issues and questions include “Where will I live?”, “How will I live?”, and “What medical treatment and care I do and don’t want?”.

For most of us, it is prudent to give consideration, as early as is practicable, to putting into place arrangements for one or more of: –

1. an Enduring Power of Attorney (and Complimentary Bank Authorities);
2. an Enduring Guardianship Document;
3. Advanced Medical Directives; and
4. a Will.

An Enduring Power of Attorney is simply a legal document to allow your nominee or nominees to carry out and implement business and property decisions on your behalf. It can be given on various conditions and with various qualifications. It can provide for an initial Attorney and for fallback attorneys. Where adequately drawn and constructed an Enduring Power of Attorney will allow the nominated attorney to act even after you lose medical capacity, for whatever reason and whether short-term or long-term. As a type of Power of Attorney and Enduring Power of Attorney is a business document and will usually need to be accompanied with appropriate and complimentary Bank authorities to enable your attorney simply to operate required bank accounts. It does not deal with issues to do with medical treatment.

Enduring Guardianship documents allow you to appoint one or more persons to be able to make health and lifestyle decisions for you, when you no longer can. It can detail medical care or treatment you do or do not want and how aggressively you do or do not want life-saving treatments to be carried out. It can appoint an initial Enduring Guardian and fallback or replacement Enduring Guardians.

Advanced Medical Directives are arrangements, best documented, to set out what medical care, directions and values are to be taken account of when medical decisions are being made for you when you can.

A Will, of course, simply sets out how, following your death, you want your estate distributed and how you want any minor children or loved ones supported. For details of things to consider in a Will see below.

Making a Will? Some (not definitive) Things to Consider

Item Question / Issue

Who Do I have a spouse or partner? If so, should we both do Wills and do they have to have any reciprocity ?

1 What assets do I (and my spouse or partner) have? If so, will both Wills be done?
2 What liabilities do I have? How will liabilities existing at date of death be paid?
3 Do I have insurance to be applied against liabilities in the event of death?
4 Do I have superannuation? If so, do have to make any special nominations or notifications to the trustee of the superannuation fund?
5 Who will be your beneficiaries? ? Blended Families, charites etc?
6 What will the beneficiaries be given? – General or specific gifts?
7 Do I intend to make any specific gifts of specific property or amounts of money?
8 Are any of my assets liable to Capital Gains Tax (CGT)? If so, consider obtaining specific advice, including from your accounting advisor, in respect
of your estate dealing with them.
10 How will do you want to divide your estate amongst your nominated beneficiaries?
11 Do you want to leave part of your estate to one or more charitable organisations?
12 Who will be your residuary / fallback beneficiary, if the main beneficiaries predecease you?
13 In deciding what to leave to whom, have you made adequate provision in your Will for your dependants?
14 Do you want the executors to use particular solicitors and/or accountants?
15 Consider appointing an alternative or fallback executor(s)?
16 If you have children, do you want to appoint a guardian for your underage children? Who will this be? Are there children from other relationships?
Testamentary trusts
17 Do you want to nominate an amount for maintenance for your children?
18 You make a gift to your child but the child predeceases you, do you want that grandchild(ren) to step into the gift of their parent?
19 Do you want to give other directions, such as where you would like to be buried and/or aspects of your funeral service?
20 If you have grandchildren (nieces or nephews or other people) , do you wish to make any specific provision for them?
21 Does your estate require you to consider Estate Planning?
For example, do you:-
 want to pass on a family business? – Who will run it and how?
 Have a family or business trust? If so, how will it be best dealt with, particularly in light of CGT issues? This may involve having to have us
check the terms of the trust because “trust” held assets may not technically part of your estate.
 How do you want to deal with any shareholding or investments in ongoing businesses?
 have a superannuation payout? – Does it go to your estate or to a nominated or fallback beneficiary?
 want to make a gift to charity?
 have capital losses, to the extent Capital Gains Tax might be relevant?
 have property which may be caught by Capital Gains Tax,?
 have death and/or life insurance?
 have personal and/or family debts?
 want flexibility in distributing your assets, e.g. if there are more children or grandchildren on the horizon, or for tax purposes?
22 If you envisage specific gifts of specific items (e.g. jewellery, sometimes it is best to list them on a schedule with photographs of specific items)
23 Where will you store your Will? Where will you store copies? Have you told anyone, e.gg the executor, where it is?
24 Do you want to arrange and pay for your funeral in advance?
25 Do you have any religious, cultural or other issues you want to be taken account of in your funeral arrangements?
26 Consider the need for and wisdom of doing Enduring Powers of Attorney, Enduring Guardianships or Medical Directives at the same time.
27 What do you want done with your social media material?
28 Do the circumstances warrant thought about “mutual wills ”?
29 Is it time to consider funding of ‘retirement accommodation’ and its impact on your estate and who gets what?

if you have any queries or wish to discuss any of the above, please contact me via the website or by email to info@gregdross.com.au and I will call you back.