Enduring Power of Guardianship (‘EPG’)
Why do I need an EPG?
Ever thought about an Enduring Power of Guardianship (EPG)? It’s your safety net for those times when making decisions is tough.
To set up an EPG:
* You need to be 18 or older.
* You need to be sharp enough to get what you’re signing up for.
The nitty-gritty of how an EPG rolls is in Part 9A of the Guardianship and Administration Act 1990.
So, who’s an Enduring Guardian?
That’s the person you pick to call the shots when you can’t. They need to be 18 or more and on the ball legally.
Your enduring guardian can decide on stuff like where you kick it, the services you get, and your healthcare. But when it comes to your dough, they’re hands-off.
Thinking of having more than one guardian? You can have joint ones, but they need to be a team. Think carefully about how well they’ll groove together.
The Public Advocate says stick to two joint guardians max.
You can also name substitute guardians who step up if your main crew can’t.
When you set up your EPG, you decide how and when your guardians jump in. Maybe they only act when they’re nearby, keeping it local.
Planning ahead with an EPG means you’re covered, even when life gets tricky!
Ensuring Power of Attorney (‘EPA’)
Thinking ahead about an Enduring Power of Attorney (EPA) is crucial in case you might not be able to handle your financial decisions down the road.
Anyone over 18 with full legal mojo can create an EPA. What does ‘full legal mojo’ mean?
It’s about knowing:
* What you own and how much.
* That your attorney can pretty much do what you can with your property.
* You can guide your attorney while you’re sharp and even cancel the EPA.
* If you lose it mentally, the EPA kicks in and is hard to undo.
* Your attorney operates on trust, no watchdogs here.
You can’t have someone make an EPA for you if your mental game’s iffy due to illness or injury. Unlike a regular power of attorney, an EPA stays strong if you lose your legal mojo.
When you make an EPA, you decide if your attorney can start now or only if you lose it later.
Starting now? You can still handle your cash, but your attorney can take over when you’re not up to it.
Later? Your attorney waits for the green light from the State Administrative Tribunal.
Got it? Planning an EPA is a smooth move to keep your financial groove going strong!
Contesting a Will under the Family Provision Act / I was cut from the will – what are my options?
In WA, an eligible person can make a claim under the Family Provision Act 1972 (WA) against an estate to claim further or any provision from any estate. This includes:
- a person who was married to or living as the de facto partner of the deceased;
- a person who was entitled by a Court order or agreement to maintenance from the deceased;
- a child of the deceased, either living at the date of death or born 10 months after death;
- a grandchild of the deceased (in limited circumstances);
- a stepchild of the deceased if they were being maintained by the deceased; or
- a parent of the deceased.
The applicant must prove that the disposition of the Estate, either under a Will or in accordance with their entitlements under the Administration Act 1903 (WA), did not make adequate provision for the applicant’s proper maintenance, support, education or advancement in life. Whether this is the case will depend on factors such as their relationship with the deceased, the size of the estate, their financial position, and the position of the other beneficiaries entitled.
If the applicant can prove this, then the Court will determine what proper and adequate provision from the estate should be.
A person has six months from the date of the Grant of Probate or Letters of Administration to make a claim. A person may be able to make an application after that date in specific circumstances.
Wills for business owners – how to protect your assets?
If you have interests in a company or a trust that runs a business, it is important that you receive the right estate planning advice tailored to your business.
If you own shares in a company, you should ensure a current Shareholders Agreement is in place which includes provisions as to what is to happen to your shares in the event that you pass away, or suffer total and permanent disablement.
Similarly, if you have an interest in a trust, including if you own units in the trust, you should also ensure that the trust deed outlines what is to happen with those units, or any entitlement as a beneficiary of that trust, in the event you pass away. The trust deed should include things such as who can make decisions regarding the trust if you pass away, and what happens to it.
It is also imperative to have an Enduring Power of Attorney in place in the event that you lose capacity so that someone can make important and necessary decisions in respect to your business if you are unable to do so. This is a document that enables a trusted person, who you nominate as your attorney, to make decisions in respect to finances and property on your behalf.
A post office will – what could go wrong?
Post office wills are notorious amongst estate practitioners for being rife with issues. They do not provide for all different possible circumstances.
Without receiving advice from an experienced estate planning practitioner, you are likely to miss key factors regarding your circumstances that require specific considerations and plans put in place and recorded correctly in your will.
A very common requirement often overlooked is the requirement for testamentary trusts, which provide many benefits to your prospective beneficiaries, including asset protection, tax benefits, and risk mitigation.
Complex Families and complex wills – how to make sure your wishes are known
If you have a blended family and have a raft of people that you would like to make provision for, or alternatively may be entitled to provision, it is important to receive estate planning advice to ensure that your will is properly formulated to include family members, for example if you wish to leave assets to step-children, your will should make clear that a reference to children includes step-children.
If you have a family member that may be entitled to your estate, and you wish to exclude them from your estate, you should note this in your will as well as complete a statutory declaration setting out the reasons why you wish to do so. This will assist your executor or administrator in the event that you pass away and an excluded person makes a claim against your estate, as while it is not a bar to making a claim, it assists the court in recognising that you have considered that person and chose not to include them for particular reasons.
What is Letters of Administration with the Will annexed?
If a person passes away with a Will, but the executor/s are unable or unwilling to act (e.g. if they have lost capacity or passed away), a person entitled can apply to the Court for a grant of Letters of Administration with the Will annexed.
This is similar to an application for Letters of Administration but is more complex.
