Wills & Power of Attorney

We can help prepare your Will, Power of Attorney or Appointment of Medical Treatment Decision Maker.

Many people ask us “What is the point of having a solicitor prepare my will, can’t I just get a legal will kit form the post office or TV?”

The simple answer is sure, you can get a legal will kit, but unless you know what you are doing, it is fraught with danger. Your will is one of the most important documents that you will make. Why leave it to chance?
A will is a complex document with many statutory and common law requirements which need to be met to ensure that it deals with your property in the way that you intend. It can have consequences for your loved ones if it is not completed correctly. The worst case scenario is that your will could be totally invalid. This would leave your estate to be administered and distributed by statutory formula, which may not coincide with your wishes.

Who Should have a will?

If you own any property, whether it’s cash in the bank, shares, bitcoin, intellectual property or real estate, and your wishes differ from the statutory formula for intestacy (not having a will) then you should make a will.

What We Do

We provide peace of mind when we prepare our wills. We take extensive instructions from you. We ask questions about you, your family and your circumstances so that we can provide you with the appropriate advice and estate planning strategies. We conduct the legal test for capacity, and ensure that your will complies with the statutory and common law requirements. We store your will in our safe custody deed register, for the day that you or your loved ones need it.

How much is a will?

We charge set fees for basic wills. More complex wills require additional fees, some of which are set and others may require an hourly rate. However, in most situations basic wills are sufficient to suit your purposes. Contact us today to obtain an estimate and start making or updating your will.

Power of Attorney

There are four different appointments that can be made under the Powers of Attorney Act 2014 (Vic).

Enduring Power of Attorney

You can specify additional instructions such as whether you allow the giving of gifts or making of charitable donations, maintaining relatives or dependants and whether your attorney can receive remuneration for performing their duties. These options are less common but if you want advice regarding one or more of them, please let us know.

The most common document is the Enduring Power of Attorney. Questions about it feature on our questionnaire. It is the most popular as, once it is made, it lasts after the principal loses their decision-making capacity. This ensures that a principal’s interests can continue to be protected by the nominated parties after the principal loses the capacity to make decisions about their personal or financial affairs or both.

The options for granting power to your attorney or attorneys can be tailored to suit your personal circumstances. Often Principals confer the widest power possible on their attorneys. There is freedom to appoint one or more attorneys. Alternative attorneys can be appointed for each attorney. Attorneys can be made to act jointly (together), jointly and severally (together or separately), by majority or separately. Different attorneys can also be appointed to handle different aspects of your life.

You may appoint an attorney to act for you in personal or financial matters, or both. You can also specify specific acts which you attorney can do or grant specific powers. A subsequent Enduring Power of Attorney does not need to revoke a previous document and they can both be active at the same time, provided there is no conflict between the documents. You can also limit the powers of your attorney by specifying it in the document.

The power can commence:

• Immediately
• When you cease to have decision making capacity for the matters
• At a time that you specify

Non-enduring Power of Attorney

These documents can be used for limited purposes. You can appoint an attorney to act for you. However, the document ceases to have effect if you lose the capacity to make decisions. There are no other significant differences between this document and the enduring power of attorney

Power of Attorney for Security

Please contact us to discuss if you require one of these documents.

Supportive Attorney

Removal of Attorneys, Resignation and Revocation

Once you have made your enduring power of attorney, you may wish to remove one or more attorneys. We can assist you with this process. We can also assist you to revoke the document completely and make a new document if appropriate.

An attorney can refuse to sign the statement of acceptance. If this occurs, they will not be an attorney and the appointment will not be complete.

An attorney may also resign as attorney. There is a process required for resignation, which we can assist with.

Litigation

On occasion, there is the need to initiate court proceedings against an attorney. This can be done in the Victorian Civil Administrative Tribunal or the Supreme Court of Victoria. If you think your attorney or the attorney of a loved one has acted inappropriately, please contact us for additional advice.

Appointment of Medical Treatment Decision Makers

Until recently, Power of Attorney for Medical Treatment were able to be executed. These documents were limited to only one attorney and one alternative attorney. On 12 March 2018, by the Medical Treatment Planning and Decisions Act 2016 (Vic) this position has now changed.

In Victoria, by legislation, your next of kin is automatically the person entitled to make medical treatment decisions for you. This statutory position can be altered by the execution of a document known as an Appointment of Medical Treatment Decision Maker.

The document works in order of priority. Your first decision maker is contacted first. If they are not available, your second decision maker will be contacted and so on. You can appoint four medical treatment decision makers.

Advanced Care Directive

The act also deals with Advanced Care Directives. We can assist you to prepare these forms. However, they need to be witnessed by your doctor. We also recommend that they are prepared in consultation with your doctor. An advanced care directive needs to be completed before your Appointment of Medical Treatment Decision Maker. It must be provided to your decisions makers, who must read it before signing the statement of acceptance.

The advanced care directive ensures that your medical treatment decision makers and medical practitioners are bound to follow your medical treatment wishes. Please contact us if you need to discuss these documents further.