Estate Planning in NSW for Persons with Disability
Why is it important?
An estate plan is much more than just a Will.
Making sure you have a voice in relation to who makes decisions for you, and how you are to be cared for if you were to lose the ability to be able to do that for yourself, is profoundly important. Perhaps one of the most important decisions most of us will ever make. Equally significant is choosing how to pass on all your possessions, property and memories.
Can I do it myself?
There are many factors to be considered when creating an estate plan that require professional legal expertise. You may need advice on a range of factors.
These could include things such as:
an appropriate type of Will for you;
structuring specific and general gifts under your Will;
including special powers for your executor or trustee to appropriately administer your estate;
the risk of claims upon your estate (family provisions) and how to mitigate these risks;
taxation, stamp duty or trust and superannuation law issues
including restrictions or unrestricted powers in relation to your estate planning documents; or
whether you have the mental capacity to establish your estate planning documents.
Additionally, to activate several of these documents you will require a Prescribed Witness, such as a Solicitor, to sign a certificate.
Your Solicitor will ensure that all documents are signed appropriately, are legally valid and effective
What if I don’t have a lot of property currently – do I still need an estate plan?
We have many clients question whether they should be establishing an estate plan based upon their current financial situation. The short answer is YES! You absolutely need an estate plan irrespective of your financial situation.
If you are unable to communicate or make decisions for yourself, certain estate planning documents will articulate your specific wishes and the appropriate person to make decisions for you. This may be for a short period of time, for example, while you are recovering from a big surgery or medical episode, or may be from the period that you lose capacity up and until you pass away.
In relation to finances however, did you know that wealth levels tend to continue to rise with age due to career progression, superannuation, investments and inheritances? Many people die with the highest levels of wealth accumulated over their lifetime. It is the property that you own at the time that you pass away will come together to establish your ‘estate’.
Capacity
Capacity refers to an adult’s ability to make decision for themselves.
There are different levels of capacity required for specific estate planning documents.
Your Solicitor may need to assess the following to ascertain whether you have the necessary capacity:
Ability to understand and comprehend the effect of an estate planning document;
Understand the main choices of a particular decision;
Ability to weigh up and consider the consequences of a choice;
Understand how the consequences of a decision could affect them;
Make decisions freely and voluntarily
Can communicate their decision.
Your Solicitor may require reports of documentation from your treating health professionals to ascertain or confirm your capacity.
Passing away without a Will
If you are to pass away without a Will, a legal formula will be applied to determine who will inherit your hard-earned money, possessions and property.
If there is no one contained within the list of people the law deems should inherit, then all these things collectively will be given to the State, also known as, the Government.
Considering Australia’s aging population and declining birthrates, it is likely that this eventuality will unfortunately be more and more common.
To avoid this situation, it is vital that you have a valid Will at the time that you pass away.
How we can help
Connected Legal + Commercial focus on establishing personalised and individual solutions to estate planning and have helped many clients with a lived experience of disability.
We can implement appropriate accommodations to communicate and navigate this journey with you in accordance with your individual needs.
We look forward to assisting you through your estate planning journey.
DISCLAIMER
The content given herein is provided for information purposes only. It is general in nature and does not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters.
Connected Legal + Commercial does not accept any liability to any person for the information (or use of such information) which is provided herein or incorporated into it by reference.
The information is provided in good faith on the basis that all persons accessing the content undertake responsibility for assessing its relevance and accuracy and will seek appropriate formal legal advice accordingly.