As December approaches, what checklists do you have in place for the festive season?

Do you have a checklist of what to pack for your holiday? No doubt you have the usual checklist of food items to buy to make your favourite Christmas lunch?  And you are sure to have a checklist of gifts to buy for your friends and family?

However, there is one checklist that you may not have but it could be the checklist that could make the biggest difference for you and your loved ones.  It’s called the ‘Festive Season Estate Planning’ checklist.

1. A Will

Whether you are 18 or 80, everyone should have a current Will.  ‘Current’ means your Will was prepared by a lawyer within the last 4 years and you have not married or divorced during the 4 years.

If you have married or divorced in the 4 years, the Will you have is invalid unless it was prepared in contemplation of your marriage or divorce.

If you die without a valid Will in place, you risk your estate being distributed to certain beneficiaries according to legislation and according to set percentages.

If you don’t have a current Will, contact a lawyer well in time before you go holiday.  A properly drafted Will does not take an hour to prepare!

2. An Enduring Power of Attorney (“EPA”)

Regardless if you are single, married, divorced or in a defacto relationship, if you suffer a head injury and lose mental capacity eg. in an accident, NO ONE can access your bank accounts or deal with your financial affairs or matters concerning your house on your behalf without an EPA form in place.

The case study of Susan and John demonstrates the ‘power’ of an EPA.  Susan and John have been married for 5 years and have two small children aged 3 and 9 months.  Susan is 27 and a ‘stay at home Mum.’  John is 32, healthy and an Engineer with his own business.  John deals with all their financial matters; their personal bank accounts are in his name as well his business bank accounts.  Their family home is also in John’s name.  Tragically, John suffered a brain haemorrhage one morning and he is placed in an induced coma and on life support.  John does not have an EPA form in place.

When Susan contacted John’s bank, they refused to give her access to his accounts despite them being married. She couldn’t pay any immediate bills and she had no authority to make any decisions about John’s business.

Had John appointed Susan as his Attorney, the bank would have given her access to John’s accounts.  She could have made short terms decisions for John’s business.  However, most importantly, Susan would not have had the added stress of trying to sort out their financial woes while also trying to spend as much time with John as he lay gravely ill in hospital.

3. An Enduring Power of Guardianship (“EPG”)

In Australia, when a person turns 18 they are ‘granted’ a number of legal rights eg, the right to vote and to consume alcohol.  However, turning 18 also means a person has the right to make their own medical and lifestyle choices ie, what medical treatments they will or will not receive, where they will or will not live and who they can or cannot socialise with.

Such right remains in force until a person loses mental capacity, whether through a head injury or as a result of aging.  If a person has not signed an EPG, it is up the State Administrative Tribunal (“SAT”) to formally appoint another person(s) to act as the Guardian for the incapacitated person.  The appointed Guardian can be a member of the family, a social worker or a court appointed legal body.

Using the case study, John didn’t sign an EPG because he was young and healthy and always thought an EPG was for ‘old people’ with mental issues.

When John suffered his head injury, he lost the ability to make decisions about his medical treatments.  John needed an urgent medical procedure that his parents were against while Susan saw the procedure as the only chance for him to survive.

Susan wanted to do everything possible to keep John alive.  As John’s wife, Susan did not automatically have the legal authority to make decisions for John.  John’s parents made an urgent application to SAT to stop Susan from making decisions for John.  The family situation was very stressful for everyone while John lay gravely ill in hospital.

Had John signed an Enduring Power of Guardianship, he could have appointed the person(s) he trusted the most to make the best choices for him.

5. An Advance Health Directive (aka a ‘Living Will’)

An Advance Health Directive is a document that contains a person’s decisions about future medical, surgical and dental treatments.  A person can decide if they want to receive certain treatments, such as receiving life support, or you they choose not to.

The decision to sign an Advance Health Directive is an independent choice for everyone to make and it is based on a person’s own experiences, beliefs or religion.

In John’s case, he did not sign an Advance Health Directive.  The missing link in the case study is that John’s twin brother, Sam, tragically also suffered a brain injury two years prior.  Sam survived but is permanently incapacitated and lives in a 24hr care facility.  John witnessed first hand the financial and emotional hardship of Sam’s injury on Sam’s wife and extended family.

John vowed to his parents that he never wanted Susan and his kids to go through the same thing that Sam’s wife and children have endured.  And most importantly, John never wanted to live his life like his brother – connected to machinery and having a nurse bathe him daily.

Had John signed an Advance Health Directive, the doctors would have acted according to John’s wish and not given him any life sustaining treatment but he would have been kept comfortable until he passed.

Checklists are an effective way to get things accomplished.   The ‘Festive Season Estate Planning Checklist’ is the most important list you will complete.  It will ensure that your loved ones will be well taken care of and, they will not have to face any unpleasant decisions if you suffer a tragedy.

To complete the documents on your ‘estate planning checklist’ before the festive season, contact Shirley Tascone during office hours on 0450 499 822 or email her at Shirley@sbtlegal.com.au.