What is an Enduring Guardian?

In New South Wales, you can appoint an Enduring Guardian under the Guardianship Act 1987 to make medical and lifestyle decisions for you if you are unable to make them for yourself.  Any person can be appointed as your Enduring Guardian except for a paid carer.

If you appoint an Enduring Guardian you can authorise them to make decisions about where you live, what medical treatment you receive as well as other lifestyle matters. If you wish for a person to handle your financial or legal affairs you must appoint them under a Power of Attorney, which is a separate document.

If you have particular wishes about medical treatment or care, appointing an Enduring Guardian enables you to discuss those wishes with that person. You can also place specific directions or limitations in the document appointing them.

If you do not have an Enduring Guardian and are unable to make medical decisions for yourself, another person close to you will make decisions for you. The Guardianship Act 1987 sets out who can make decisions in these circumstances and this is your spouse (including a de facto spouse) or if you do not have a spouse, your carer or a close friend or relative.

Appointing an Enduring Guardian is particularly important if you do not have a spouse or if your spouse may not be available to make decisions for you. By appointing an Enduring Guardian, you ensure that the person who makes decisions for you is the person of your choosing and you have the opportunity to discuss with them your wishes about what kinds of treatment you may or may not wish to receive. This can bring peace of mind at any age but becomes quite important as you get older.

If you would like to appoint an Enduring Guardian or if you need advice about other estate planning matters, contact Althea at Hornsby Wills and Probate on 0410 485 277 or by email: althea@hornsbywillsandprobate.com.au

What is Probate?

Probate is official recognition of a deceased persons will.  It is granted by the Supreme Court to the executor(s) named in the will and gives them full authority to deal with the deceased persons assets and to distribute their estate in accordance with the terms of the will.

If there is no will, Letters of Administration can be granted to one or more of the people entitled to the deceased persons estate.  A Grant of Administration works the same way as a Grant of Probate and gives the person to whom the Grant is made, known as the Administrator, legal authority to deal with the deceased’s assets.

Letters of Administration can also be granted to a person entitled to a deceased estate if the deceased leaves a will with no named executor or if the executor named in the will has died before the testator.  This type of Grant is called Letters of Administration cum testamento annexo (with the will annexed).

Administrators or Executors of a deceased estate can be referred to as ‘Legal Personal Representatives’ and it is their responsibility to gather in the assets of the deceased, pay any outstanding debts and then distribute the remaining estate in accordance with the terms of the will or the intestacy provisions in the Succession Act 2006.  Legal Personal Representatives are subject to a number of obligations and must make a sworn commitment to administer an estate in accordance with the law when applying for a Grant.

Not all deceased estates will need a Grant of Probate or Administration, however some asset holders will only release assets if a Grant has been made.  For example, the title to land cannot be transferred without a Grant of Probate or Administration.

If you need advice about a deceased estate or assistance with applying for a Grant of Probate or Letters of Administration, contact Althea at Hornsby Wills and Probate on 0410 485 277 or by email: althea@hornsbywillsandprobate.com.au

When should you update your will?

How often a will needs updating depends on the circumstances of its author, who is known as the testator or testatrix.  Once it is signed a will remains valid until it is revoked however over time an individual’s family structure and financial circumstances will change.  This means that a will drafted a long time ago, even though it is still valid, may not accurately reflect the testator or testatrix’s current wishes.

Generally, you should review your will every 5-10 years to make sure you are happy with it.  It is also a good approach to review your will upon the happening of major life events including:

  1.  Getting married or divorced.
  2.  Commencing or ending a de facto relationship.
  3.  The arrival of children or grandchildren.
  4.  Any significant change to your financial circumstances.

If you would like some advice about your will, please contact Althea at Hornsby Wills and Probate.  Ph: 0410 485 277.  Email: althea@hornsbywillsandprobate.com.au