Wills, Estates & Powers Of Attorney
We have the experience and expertise to handle your case to the highest standards including the preparation and presentation at Court.
Our firm has extensive experience dealing with all aspects of:
A will is one of the most important documents that you will sign in your lifetime. It is the document that states how you wish for your assets to be distributed when you die and can also contain other provisions such as instructions for the care of those who are dependant on you at the time of your death.
Even if you already have a will, circumstances may have changed and your will may no longer meet your current needs. It is prudent to review your will every three to five years to ensure it still reflects your current lifestyle.
If you have a will and it is not drafted correctly or you receive poor advice at the time of drafting, your will may be subject to legal challenge after your death resulting in the distribution of assets against your wishes.
If you die without a will the law may impose a method of distribution of your assets that does not concur with what you would have wished.
A will can sometimes be challenged after a person dies. The common reasons for a will to be challenged are:
- The deceased did not have the testamentary capacity to make a will at the time it was signed;
- The deceased made a will under duress or was influenced by others; or
- A person the deceased had a responsibility to provide for believes they were not left a fair share of the assets.
An eligible person is permitted to challenge an Estate in court, especially if the deceased had a responsibility to provide for them. You should always seek legal advice if you believe you have a valid claim against an Estate.
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property under the valid will. In Victoria, the Supreme Court decides the validity of a testator’s will. The process of Probate generally interprets the instructions of the deceased, formalises the executor as the personal representative of the estate, and distributes the assets of the estate to the beneficiaries.
Powers of Attorney
A power of attorney is a document whereby one person authorises another to act on his or her behalf. A power of attorney is generally in relation to financial and property decisions however it is also possible to implement an enduring power of attorney, or an enduring power of attorney (Medical Treatment).
The “general” power of attorney can only be used while you are alive. It also ceases to be effective if the party who is subject of the power of attorney loses mental capacity. General powers of attorney are usually used for commercial or transactional purposes to conduct, for example, a sale or purchase of property.
An “enduring” power of attorney allows you to make a power of attorney that will continue to be effective even if you lose mental capacity. It ceases when you revoke it or when you die. Mental capacity has no effect on the application of an enduring power of attorney unless you stipulate that it should only come into effect once you lose mental capacity.
An “enduring power of attorney (Medical Treatment)” allows you to appoint someone to make medical decisions for you. These may include agreeing to medication, surgery and other medical procedures. The person you appoint may also refuse medical treatment however they can only refuse treatment if the treatment would cause you unreasonable distress or they reasonably believe that you would consider the treatment unnecessary. The powers under an enduring power of attorney (Medical Treatment) do not extend to financial, legal or guardianship decisions.
An attorney can have significant power over your life and your affairs so you should choose an attorney whom you trust and who will manage your finances in a responsible way.
Guardianship and Administration
Many people with impaired decision-making capacity are capable of making most, or at least some, of the decisions that affect their lives however when their decision-making capacity is seriously impaired certain decisions may have to be made by others.
In the case of an adult, no one has an automatic right to make decisions on their behalf regardless of how closely the two are related. You can appoint someone to make these decisions for you by way of an enduring power of attorney however if you do not have this opportunity, the law will step in to assist and authorise someone to act on behalf of a person with impaired decision-making capacity.
Guardianship generally relates to decisions in regard to lifestyle and medical issues and Administration relates to the financial management of the impaired person’s assets.
Lewenberg & Lewenberg have extensive experience in all of these areas. If you have any questions regarding the above information or would like to make an appointment to discuss your wills and estate needs, our staff would be more than happy to assist you.