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The importance of Wills and Powers of Attorney

The importance of Wills and Powers of Attorney

As Groucho Marx said “I intend to live forever, or die trying”.  However as much as we might try avoid thinking about death, it is incredibly important to plan and record our wishes should we become incapacitated or die. Advanced planning can avoid uncertainty and heartache for your loved ones.

An up to date and accurate Will is essential. It is important to remember to consult your solicitor about revising or updating your Will, should any of the following events occur:

  • there is a substantial change in your financial situation
  • the death of an intended beneficiary
  • new arrival in the family
  • you separate from or divorce your spouse
  • you remarry
  • legislation changes, eg death duties
  • you are involved in IVF or surrogacy.

A Power of Attorney is also extremely important and can be a mandatory requirement of hospitals or aged care facilities. On 1 September 2015, the new Powers of Attorney Act 2014 (Vic) will replace existing provisions. Whilst not invalidating previous Powers of Attorneys, it provides for new roles, definitions and expanded VCAT jurisdiction for Powers of Attorney.  If you have any queries regarding Powers of Attorney or about the new legislation, please contact Hubert Algie.

Whilst not essential, an Advance Care Directive (ACD), otherwise known as a ‘Living Will’ can also be of great assistance in caring for the seriously ill. An ACD is a direction given prior to losing capacity, identifying the medical treatment you do, or do not, want to receive should you lose capacity. Whilst the law in this area is uncertain, an ACD can assist those holding a medical power of attorney and your treating medical staff to ensure your wishes are followed.

Finally, if you are suffering from a current medical condition under the Medical Treatment Act 1988 (Vic), you can implement a ‘Refusal of Treatment Certificate’. This certificate provides legally binding directions, where an ACD is less specific, about medical treatment. The certificate is precise in excluding palliative care but it can specify that you do NOT want certain treatment in relation to your current medical condition.

So, whilst we may intend to live forever, careful and considered estate and care planning now, whilst you enjoy full capacity, can be very easy and provide all those around you with clarity as to your wishes.

28 April 2015
Hubert Algie