Bowen Buchbinder Vilensky

Choose Now Whilst You Can! – Your Future Decision Makers

This one (2)

By Laura Di Cristofaro, Associate at Bowen Buchbinder Vilensky Lawyers

26 August 2016

Most of us are aware that a Will is a document that captures our wishes for the disposition of our assets (amongst other matters) once we die. It is not common knowledge, however, that there are also documents that one can execute in order to preserve our wishes for when we are still alive.

These documents are called an Enduring Power of Attorney, Enduring Power of Guardianship and Advanced Health Directive (sometimes called a Living Will).

For anyone who is addressing their estate planning objectives (and that should be all of us) it is important to consider the protection of your person and estate during your lifetime, as well as considering what happens to your assets once you die. To only execute a Will, and not consider what measures you take to protect the estate during your lifetime, is only addressing part of your estate plan.

Enduring Power of Attorney

An Enduring Power of Attorney allows you to appoint a person that you trust implicitly (usually a spouse or a child) to have authority to deal with your financial affairs.

This means that your ‘attorney’ (the person you appoint) has the authority to deal with your assets as if they were standing in your shoes. Your attorney may access your bank accounts, investments and (if you lodge the document with Landgate) deal with your real estate, if you ever lost the capacity to do so yourself.

Although this may not seem rational in reality, provided that your attorney is a reliable person to be given such a power, it is an important document that may assist you in times of emergency. If you were ever in a position where you could not make decisions for yourself, and you have outstanding financial obligations that need to be addressed, your attorney may step in and address those requirements on your behalf.

An Enduring Power of Attorney will provide you peace of mind in knowing that in a time of crisis, your financial obligations are being attended to by someone you trust and in whom we you have confidence.

Enduring Power of Guardianship

This document is similar to an Enduring Power of Attorney, however it relates to health and lifestyle decisions only. When you have capacity, you are able to make decisions relating to your own health and treatment and lifestyle decisions. For example, where you live, what medical treatment you undertake or what entertainment you will enjoy, etc.

Should you become incapacitated, you will have selected the person whom you trust to make these decisions on your behalf.

Although you may think that this document is unnecessary and when the time comes your family will be able to make those decisions for you, it is important to remember that decisions of these nature are particularly personal and you must consider reasonably whether it would be prudent to appoint particular people to preserve your wishes regarding your health and lifestyle.

Advance Health Directive

An Advance Health Directive is a document in which you set out, in advance, what treatment decisions you choose in certain circumstances where you cannot communicate those decisions at the time. The types of treatment decisions set out in these documents relate to the situation where you may be on life support or in a vegetative state. You may set out that you consent to, or do not consent to, treatments such as resuscitation, artificial feeding, blood transfusion, and similar treatments.

Your treatment decisions in your Advanced Health Directive must be followed by a medical practitioner and you therefore control the way you are treated in the event that you require life sustaining measures to be kept alive.

If you wish to discuss any of the above documents as part of your estate plan, please contact Laura Di Cristofaro of our office at ldicristofaro@bbvlegal.com.au.

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