It is important that you should have an in force “Will” that are appropriate to your wishes, thereby avoiding dying intestate (that is, without a legal Will) and causing additional trauma for your loved ones surviving you.  Dying intestate means that your assets are distributed in accordance with a government formula, set out in an Act of Parliament commonly referred to as intestacy rules. The government formula is applied strictly and does not allow for your intentions to prevail.

Matters to receive attention include:

• Nominate executors who are likely to survive you, and who clearly understand your wishes.
• Nominate beneficiaries in relation to the whole or part of your estate and nominate second choice beneficiaries should the first choice predecease you.
• Bequest monetary value or a percentage of your estate rather than a specific asset, as there is the risk that an asset may not be in existence at the time of the distribution of your estate.
• Nominate assets to be held in a Testamentary Trust (discussed further below), particularly for beneficiaries under 18 years of age.

A Power of Attorney is a completely separate document to your will, which generally appoints another person to act on your behalf. A Power of Attorney can make decisions for you, sign documents, pay your bills, manage your investments, and generally act in your best interests. It may be specific, for example, a power granted to operate a nominated bank account or sell a named property.

In Victoria there are four kinds of powers of attorney:

General Power of Attorney are generally short term in nature and covers financial and property decisions. Y is given by the donor to the attorney and it ceases immediately upon the donor becoming mentally unable to manage their own affairs.
In practice, this means that as a result of an accident or other trauma, the donor has lost capacity to act, the attorney is also unable to act.
A general power of attorney is usually prepared to perform a specific function for a limited period of time.

Enduring Financial Power of Attorney mainly concerns financial and property decisions. The main difference between a general power of attorney & an enduring power of attorney is that the authority given by the donor to the attorney continues beyond the donor’s own incapacity.
This allows the attorney to continue acting notwithstanding that the donor has lost their mental capacity. It is an essential document, particularly for older people who are finding it increasingly difficult to attend to their personal affairs.

Enduring Power of Guardianship allows a donor to appoint an Attorney to make lifestyle decisions, such as where the donor lives and works) in the event of the donor losing capacity in the future.
The donor can express preferences in relation to lifestyle decisions in the document.

Medical Power of Attorney allows a donor to authorise an agent to make decisions regarding medical treatment.

Typically, an enduring power of attorney (medical treatment) is prepared where a donor wants to express a preference in relation to the administration of medical treatment. For example, whether the donor does not want to be kept artificially on life support. It should be noted that an agent cannot refuse the basic necessities such as food and water on behalf of the donor. Further, the power does not authorise euthanasia.

A testamentary trust is a trust that is established by a will that comes into affect upon death of a willmaker. The term “testamentary trust” is used to describe a number of forms of trusts that result from the death of a willmaker. For instance:

• Discretionary will trust
• Discretionary life interest
• Superannuation proceeds trust.