The Matter of Your Will

Will

I am an aged care Placement Specialist and I have an 84 year old client right now who is fighting for a fair share of the proceeds from the house he shared with his wife so he can afford to go into and aged care facility to be cared for. Unfortunately for him they decided many years ago to put the house in his wife’s name so it would not be affected if the business he was running ran into difficulties.  They had mirror wills to protect him. A year ago his wife was diagnosed with a terminal illness and her estranged son came back into her life. When she passed on a new will came to light, in which her husband is disadvantaged.

Although this is a complex case, it made me think about how people could be adversely affected if there was no will at all. Sadly if you don’t have a legally binding will your wishes may not be followed, and the distribution of your estate may become one great bun-fight

This may end up costing a fortune in legal fees and cause more heart-ache to your already grieving family, yet many people put off making a will, which can ensure their wishes are met and bring peace of mind to themselves and those they love.

When making a will it is generally advised to use a Lawyer or the Trustee and Guardian in your state rather than make a DIY will, especially if you have substantial assets or your wishes are complex. It is also important to remember to have your will updated if there are any changes to your wishes or assets. So, now you have your will, what do you do with it?

Keeping it at home can be problematic as it may be difficult to find and there is the risk of it being destroyed by fire, tampered with or stolen. A safety deposit box you would think a good option, but it can be almost impossible for family to get hold of if they don’t have legal access to the box.  Storing it with your Lawyer is another option, but it can be lost in transition if the business is sold or the Lawyer dies, although legally they have an obligation to ensure all documents are transferred to another law firm.

The State Trustees of Victoria have set up the Victorian Will & Powers of Attorney Registry, a free initiative where anyone in Victoria can register information about the location of their will and powers of attorney documents safely or physically store their original documents with them.

The Registry will help Executors and Attorneys find documents with ease, ensuring your wishes are acted upon when the time comes. Their website states “These documents are your voice and it is essential to safeguard them securely rather than leave them to chance.”

More information about Jillian Slade

New Laws for Advance Care Directives In Victoria

This month new laws were passed in Victoria which legalise advance care directives under the “The Medical Treatment Planning and Decisions Act”. I highly recommend that my clients and any elderly person take advantage of this new legislation, as it will give them peace of mind should they need health intervention at a time when they are unable to give the decision for treatment themselves.

Under the Act Victorians can:

  • Create a legally binding advance care directive where they can specify treatment they consent to or refuse.
  • Also create a values directive where they state the values they hold that may affect medical treatment, for example, religious views.
  • Also appoint a medical treatment decision maker, a trusted person who can make medical decisions on their behalf if they are unable to make decisions, adhering to the values stated in the values directive.
  • To help a person make decisions they can also appoint a support person who can assist by gathering and interpreting information and help in communicating decisions.

The advance care directive and values directive are to be made whilst the person is able to make decisions and requires two witnesses, one of which must be a medical practitioner. A person cannot refuse palliative care as part of an instructional directive but can include statements about palliative care in their values directive, such as it is more important for them to remain lucid than completely pain-free at the end of their life. A treating physician must adhere to the advance care directive or gain a decision from the appointed medical treatment decision maker prior to treatment if their patient is unable to make decisions. This applies whether it is a temporary situation or permanent. There are some extenuating circumstances, such as an emergency, where this may not be required.

More information is available here.

You can read more about my services as an Aged Care Placement Specialist on my website.