Q & A on 2GB discussing Wills & Estate Law -27/05/14
Estate lawyer discussing drafting wills on 2GB
Tuesday, 27 May 2014
CS – Chris Smith/BB – Brian Barlow/C1,2,3 etc– Callers
CS Ok we’ll be back with your calls shortly, 131873 the telephone number, but if you’ve got some question, query anything associated with Wills and Estates and it maybe something you’re involved in which has got rather complicated, but you may wish to obtain some information on, free information, not often you get free legal advice in our legal matters segment, brought to you by Turner Freeman and from Turner Freeman this afternoon, Brian Barlow good to have you in the studio again.
BB Thank you Chris, thanks for having us.
CS A study has found that 50% of Australians die without leaving a Will, half of Australians just don’t get it and 71% had not indicated their wishes on organ donation as well. You sit down with people who write Wills, is this case and is it the case because people don’t want to think about what’s at the end of the line.
BB Yeah, Chris I’m sure that’s the reason, I mean we always, we seem to put off the things we should do and I find that.
CS We don’t want to confront death in other words.
BB No, no and people have some ill conceived views that if they make a Will they’ll die. I’ve sometimes had that, oh I just can’t face, I just can’t fact it, but once they do they seem, they feel a lot better about it.
CS I remember filling out a Will when I was about 26 or something and it was Dad said I had to do, I had a car and I had a few little small assets and he said, now’s the time to have a Will you never know what may happen. I was shocked at the time, but it’s an obvious thing and I’ve changed it time and time again and it’s now been updated recently and it’s important to do it, but half of Australians don’t. I wonder whether people can answer the question for me, if you haven’t filled out a Will why? And it is as Brian says, you think that by filling out a Will, you are going to die? Which is a little bit silly? Now filling out your organ donation intentions is just as important, because it could save lives. The whole driver’s licence thing does not exist anymore, alright it doesn’t mean anything anymore, because medical surgeons are supposed to consult the family when the time comes to decide what to do with your organs, whether they harvest them or not and the family has the choice. So given that, despite what is on your driver’s licence you’ve got to indicate to your family members which you intend to do and as a former board member on transplant Australia it was very hard getting this message across, please didn’t understand. It doesn’t matter what you’ve said 10 years before you die or 40 years before you die, about your organ wishes you’ve got to tell your family, because they are the ones at the end of the day who’ll have the decision to make and they don’t tend to make a decision to remove the organs of loved ones do they?
BB No that seems to be the case for fairly obvious reasons. It’s a very emotion and trying time. There is of course the Australian Organ Donor register, people should register with and they can make their wishes known for transplantation after death.
CS Ok William has a question for you Brian, go right ahead William.
C1 How you going?
C1 I’ve got 2 uncles that live in Queensland. Now neither, the both of them have long term partners but neither of them have any children of their own. What would mine and my brothers and sisters entitlements be when they pass away?
BB I take it William you’re talking about bringing a Family Provision claim against your uncle’s estate. Obviously if they’re in Queensland and their assets are in Queensland then that’s the legislation that you’d need to look at. However there are similar provisions of course between Queensland and New South Wales, but there are different time limits in Queensland. But essentially you have to be an eligible person. And on the face of it being nephews of your uncles wouldn’t place you eligible unless you were at a particular time dependent on them and that you were a part of their household for a period of time. So unless those criteria are fore filled, you probably wouldn’t be eligible to bring a claim.
CS He is almost one further removed, isn’t he.
C1 Even if they have no children of their own and their partners have no children as well?
BB No that’s right. We’re talking about bringing, I presume that what’s happened is you feel that you won’t be left as a beneficiary in the estate and that you would be seeking provision out of the estate, but you do have to be eligible people to do that.
C1 Oh ok, righto thank you.
CS Good on you William, thank you. While we are on this subject of who’s filled out a Will and who hasn’t, 81% failed to provide a loved one with a Power of Attorney over their end of life wishes. What we don’t want to face is the fact that we lose our facilities, we are determined and diagnosed as being unable to look after our own affairs which in most cases will happen despite the fact that we don’t want to admit it, so you’ve got to appoint a Power of Attorney whether it’s your son, your daughter or both to look after you. Is that what you’re saying and 81% have failed to do this.
BB I think Chris, I mean a Power of Attorney is more a financial document, if we are talking about end of life wishes, which we assume are more health and life style type decision making, it should be the appointment of an Enduring Guardian which is the formal document for appointing someone as your guardian to make those health and life style decisions. And also a lot of people and they are very good, they actually have these advance care directives or advance care plans, where people can actually register their end of life wishes and that can be attached to the document of the appointment of the Enduring Guardian.
CS Like for instances if the time comes and I’m on life support and there is no chance according to doctors of me being saved, you’re ok to turn off that life support or vice versa.
CS 131873, Barry go right ahead.
C2 Oh hi is that you Chris?
CS It is and Brian Barlow we’re listening, go ahead.
C2 Hello Brian.
BB Barry how are you.
C2 I’m very well thank you and yourself.
BB Thank you, good.
C2 I’ve got a quick question on, I’m a Power of Attorney, my sister and I of dad’s estate, and he has given us some money, is that, what’s the procedure there, is that tax free?
BB He’s given you some money, when you say, is your father alive or has he passed?
C2 Oh yeah, no he’s alive.
BB He is alive and he’s given you money.
BB No, there is no tax implications on that, however if you are in receipt of a Government benefit or allowance, you would have to declare the receipt of that money and may be that it might affect a pension or benefit that you receive.
C2 No we both work and also, someone has told me indirectly that because we’re Power of Attorney doesn’t make it exactly right that we can be gifted money, is that correct?
BB Well, you can only, if you’re an attorney under a Power of Attorney you can only make decisions that’s what’s in the best interest of the principal, which is your father.
C2 That’s exactly right.
BB So, so if you’re controlling his money for argument sake you shouldn’t intermingle his money with your money and that you should only use that money for his benefit. So you couldn’t, in a sense, well you cannot gift yourself or some people attempt to give themselves an early inheritance, but it’s just not permitted, you can only do what’s in the best interest of the principal.
C2 Yeah he has given us the money to buy stuff you know what I mean.
BB What for himself?
C2 No, no for ourselves.
BB Well, provided he’s of sound mind, he can still do that if the document hasn’t come into effect because normally people make an Enduring Power of Attorney which comes into effect after they suffer incapacities through unsoundness of mind or the like.
C2 Oh no, he is quite sound of the mind, yeah.
BB Well if he’s quite sound there is no need for the Power of Attorney to be used, he just makes decisions as an individual.
C2 Yeah, that’s what my sister and I were thinking but, now also the DVA needs copies of a Contract of Sale of a house that he done ages ago.
C2 What would be the purpose of that, they just need it to tidy up loose ends?
BB Well, no they’d look at, there’s an asset and income test when you get a DVA pension, so they’d want to be satisfied perhaps about the distribution of the proceeds of sale or whatever but they, those sorts of issues should be disclosed to Centrelink and DVA in any event.
CS Ok, Barry I’ve got to leave it there, I want to get to as many callers as I can, this is our legal matters segment with Turner Freeman’s, Brian Barlow happy to take your calls straight after this break.
CS 9 to 2 just quickly, motorist travelling west on the M5 east continue to experience significant delays due to an accident involving 2 trucks just outside the main tunnel in Bexley North. One of two west bound lanes is closed, one of two west bound lanes closed, traffic very heavy, queued back to General Holmes Drive, so motorists should allow plenty of extra travel time, you may even wish to find an alternative route by the sound of it and Tariq Sims from the Cowboys has pleaded guilty to that dangerous road charge, he has accepted the 2 game suspension, very very lucky, it looked, well it was a lot worse than what people are saying and could’ve, he was lucky he didn’t get more than 2! And a plane was forced to swerve to avoid crashing into a mysterious cylindrical object near Perth, a report has revealed a short time ago. The Australian Transport Safety Bureau has released a report into the near collision involving a small aircraft approaching Perth airport just after 9:00 am on March 19th. Now the DHC8 plane, the De Havilland DHC8 plane was about 23ks north east of Perth at an altitude of about 3,800 feet when the crew spotted a bright strobe light, the light appeared to track towards the aircraft and the 4 person crew realised it was possibly an unmanned aerial vehicle. This is like a drone. The pilot turned the aircraft to avoid crashing into the object which passed about 20 meters horizontally and 30 meters vertically from the aircraft. It was in controlled air space, but the crew did not receive a traffic collision avoidance system alert. See these drones aren’t being picked up. And so there is an investigation under way.
Back to our legal matters segment with Brian Barlow from Turner Freeman, 131873 Mitch go right ahead, Brian is listening.
C3 G’day Brian, how are you going.
BB Yeah good thanks Mitch.
C3 I’m just wondering, I’m 23 and I own my own home, well I’ve got a mortgage and I’ve also got a car and I think it’s about time I probably should do a Will,
C3 I’m just wondering the best way to go about that and roughly what’s the costs involved in doing a Will usually.
BB Yeah, look it does vary but essentially it terms of, I strongly suggest you see a lawyer and I would strongly suggest you see Turner Freeman of course. But normally if it’s a fairly straight forward Will at your age, you would probably look around $250 plus GST. So it’s fairly inexpensive in the overall scheme of things.
C3 Yep that would be great, ok thank you, that’s what I needed to know.
CS Thank you Mitch, much appreciated. Jim go right ahead.
C4 Hello Chris, Hello Brian.
C4 My dad has passed away in the last couple of weeks. He did have, he was nearly 87, he had dementia but in the last 10 years he was living in a de facto relationship and the partner who since, basically has cleaned him out, she’s tricked him into signing over his half of the house. She, I did have an Enduring Power of Attorney, but she contested that at the Guardianship Tribunal and they saw fit to set that aside and give her the say so on his accommodation and his medical care and they gave the financial manger status to my brother.
BB Yes, yes.
C4 So there appears to be no Will. Unfortunately his solicitor ended up also acting for the partner and it’s pretty much a closed door, I can’t get any information out them whatsoever, so have you got any suggestions as to what we could do from here on in.
BB Look it’s a difficult scenario of course if your father’s passed away and he doesn’t have any assets in his estate, then it’s very difficult to try and achieve something. Of course under the Family Provision legislation if there had been transfers of property or whatever within 3 years of the date of death, it may be possible to bring those back into the reckoning under what’s called notational estate. That being said of course, is that if your father’s de facto, obviously is an eligible person and if she is in receipt she would have been a fairly substantial beneficiary either of his Will or in terms of he hadn’t left a Will and left assets she would have been a very good claimant under the Family Provision legislation. So it’s an uphill, you are entitled to a copy of the Will, if there is one. The Succession Act provides that children for instances as you are entitled to a copy of the Will, but if there is no Will then it all becomes very difficult.
CS Which is so the message which we started off with, why people need to fill in the Will and have regularly updated their intentions?
BB Yes, very much Chris and it your father’s situation Jim it may be that these bequests might have been made whilst he wasn’t well but, it seems as though those issues were canvassed at least in the Guardianship Tribunal and they’re made determinations so, look there aren’t any easy answers Jim.
CS Yeah Jim, thank you for that, I’ve got a couple of other questions I do want to get to if I can hold you back just for 3 more minutes after the news and we will continue to do that. Legal matters with Brian Barlow.
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Courtesy of Turner Freeman Lawyers, Brian Barlow is in the studio. I want to go to 2 callers if I may and 2 callers with something that may resinate with many of our listeners, Jenny with a Power of Attorney question, go right ahead.
C5 Hi Chris, Hi Brian.
BB Hello Jenny.
C5 My question is concerning Enduring Guardianship or Enduring Power of Attorney. So what I want to know is when the power of the document transfers from the nominated individual to the acting attorney, but that I mean when or how the attorney can demonstrate lack of capacity for the person they represent.
BB Well Jenny, in the document the Enduring Power of Attorney there are boxes to tick about when the principal wants the document to come into effect and a lot of times it’s when the attorney accepts the appointment. It can be when there is a certificate from a medical practitioner that there no longer got capacity but there are a number of ways the document can come into effect but it depends on when the principal making the document decides that they want it to come into effect.
C5 Right, so in my personal example, I’m the Power of Attorney for my mother with an Enduring Power of Attorney and Enduring Guardianship and I ticked that box that I would take that control immediately, so as soon as they sign that document, so I don’t need any sort of clinical evidence or medical records or anything like that to start making decisions on her behalf.
C5 I understand she retains control in this process as well, so I’m a bit confused where that line is drawn.
BB Well if she is still wants to assert control she is able to provided she has got capacity to do that. The important.
C5 That’s the question, capacity is being questioned at this time.
BB Well of course a person can revoke the appointment of an attorney or guardian and if they have capacity to do that than they are able to revoke the documents, so there can often, and it doesn’t happen often but there can be instances where there some disputes about when the document should come into effect or whether the principal themselves, because sometimes people, are at times they’ve got capacity and other times they don’t. But I think you have to look on the face of the document itself and you have to see when the document is expressed to come into effect.
C5 If it comes into effect immediately, then you don’t have substantiate capacity thereafter.
C5 You don’t have to do anything.
BB No if the principal has nominated that the Power of Attorney begins to operate when the attorney accepts their appointment. That being said thought, they still, because its enduring, they still in a sense have to lose capacity for the document to come into effect.
BB And of course if there is any disputes about these sort of things between appointed attorneys for argument sake, then it’s an application can always be to the Guardianship Tribunal to oversee the proper appointment or whether or not there should be somebody else appointed in their stead.
C5 Right, ok, well thanks Brian you have clarified that perfectly for me, thank you.
CS Great, thank you Jenny, that’s fantastic and I’m glad we answered the question. Thank you Brian for coming in.
BB Not a problem, Chris.
CS Good to have you here, sorry we’ve pushed back a little bit further as well, news waits for no man nor woman.
BB That’s right.
CS Yes thank you, Brian Barlow from Turner Freeman, Wills and Estates this afternoon.