Wills and Estate Planning

At BHM Lawyers we aim to provide our clients with holistic legal advice to their estate planning documents.

Our objective is to provide our clients with tailored, reliable and comprehensive advice, so you can have control of your personal and financial wellbeing, even in the event that you lose mental capacity. We understand it can be an emotional and sometimes confronting process. Accordingly, we will ensure that the process is as stress-free and streamlined as possible.

Our solicitors can provide comprehensive legal advice including but not limited to:

  • Wills and Testamentary Trusts;
  • Enduring Powers of Attorney;
  • Enduring Guardianship;
  • Advance Care Directive;
  • Death Benefit Nominations for your superannuation (including self-managed super funds).

Wills

Having a clear, legally valid and up-to-date Will is the best way to help ensure that your assets are protected and distributed according to your wishes upon your death.

We can assist you in preparing a simple Will or if required a complex Will to appropriately allow for distributions involving blended families, vulnerable beneficiaries or dealing with assets like trusts, self-managed superfunds or other business assets. We will also provide advice in relation to how to minimise possible family provision claims and to reduce the potential for any dispute.

We also provide our clients with the option to store your original Will in our safe for safe keeping purposes. There is no charge for this service

We can also discuss with you any other unique circumstances including:

  • Superannuation and death benefits
  • Capital Gains Tax
  • Succession planning

Enduring Power of Attorney

The purpose of an Enduring Power of Attorney is to appoint someone (or more than one person) of your choice to be able to assist with your property and financial affairs should that be necessary.

You are also able to structure the document so that if you lose the capacity to manage your own affairs for any reason, including due to advanced age, an injury or other medical event, the attorney can continue to manage your property and financial affairs on your behalf.

You can elect to have your attorney act for you immediately or only in the event that you lose capacity and impose conditions or limitations on the attorney as you see fit.

If you lose capacity and have not appointed an Enduring Power of Attorney to make important property and financial decisions, an application will need to be lodged to the Guardianship Division, NSW Civil & Administrative Tribunal to have a financial manager appointed to manage your financial affaird. This can often be a complicated and stressful process for your loved ones during a difficult time, and can only be avoided by having the documents prepared and signed while you still have capacity.

Enduring Guardianship

This type of appointment is similar to a power of attorney, however it involves authorising someone (or more than one person) to give appropriate directions to your doctors and care givers if that becomes necessary as a result of your loss of capacity to do so yourself.

Under legislation your guardian(s) may exercise the following functions:-

  • deciding the place you live (such as a specific nursing home, or your own home);
  • deciding the health care that you receive;
  • deciding the other kinds of personal services that you receive;
  • giving consent to the carrying out of medical or dental treatment;
  • any other function relating to your person that is specified in the instrument.

Enduring Guardianship appointments only come into effect if or when you lose capacity and will only be effective during the period of incapacity. For some people, this may never be required, however if you do lose capacity and have not signed an Enduring Guardianship appointment, an application will need to be lodged by your loved ones to the Guardianship Division, NSW Civil & Administrative Tribunal to have a guardian appointed for you.

Accordingly, appointing an Enduring Guardian may give you a sense of security knowing that if anything happens and you are no longer able to make decisions for yourself, the person who you have appointed is someone you trust and who knows and understands your wishes in relation to medical treatment, where you want to live and receive care and other important decisions.

Advance Care Directive

An advance care directive is an important part of your end-of-life care. An advance care directive formalises your advance care plan should you be unable to make decisions for your care and communicate those properly to family, caregivers and medical professionals.

In a crisis, your loved ones may find it difficult to decide what treatment is best for you. An advance care directive will help remove some of the uncertainty and also the burden on loved ones in making those important decisions.

An advance care directive is usually much more detailed than an Enduring Guardianship appointment and contains specific instructions as to what medical treatment and end-of-life care you want to receive. This can be discussed with your doctor as well as our lawyers should you wish to put one in place.

Superannuation

Many people do not realise that superannuation does not automatically form part of their estate when they pass away and as a result will not always be dealt with in accordance with their Will.

Unless you have a valid Binding Death Benefits Nomination signed and held by your superannuation fund, the trustees of the fund can exercise a relatively broad discretion as to who will receive your superannuation. It will not automatically be paid to the beneficiaries as stated in your Will.

In addition, how you structure your Will and superannuation can have very different tax consequences. For example, the tax consequences of leaving your superannuation to your spouse as opposed to an adult child may be vastly different.

Our lawyers can assist you in structuring your Will and superannuation (including self-managed super) to take into account the above issues to ensure your superannuation (and as much of it as possible) goes to your intended beneficiaries.

 

 

 

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