According to the Australian Taxation Office, estate planning involves developing a strategy to deal with your assets after you die. The strategy includes legal instruments and structures that you put in place, such as a Will to transfer your assets in the event of your death.
Estate planning may involve Wills, enduring power of attorney, and advance care directive. Developing an estate plan will ensure that your assets pass to the proper beneficiaries and that financial matters and health care choices are handled in a way that you wish if you no longer have the capacity to make decisions.
Once you’ve built your Will, you can start to plan your Enduring Power of Attorney and Advance Care Directive.
An Enduring Power of Attorney is a power of attorney that continues to make decisions regarding financial and legal matters if you become legally incapacitated. When you take the time to make an Enduring Power of Attorney, you ensure that your financial matters can be looked after by someone you know and trust.
In South Australia, you can’t make someone your power of attorney after you have become incapacitated. A doctor’s written opinion that you appear able to understand the nature of the document is mandatory if your decision-making abilities are in question when making an Enduring Power of Attorney.
As a resident of South Australia, you can cancel your Enduring Power of Attorney or make changes at any time, as long as you have the legal capacity to do so. To make an Enduring Power of Attorney, you can use a Public Trustee, Solicitor or do it yourself.
In South Australia, before 1 July 2014, competent adults could complete an Enduring Power of Guardianship form to appoint a person to make medical and lifestyle decisions on their behalf if they lost decision-making capacity.
The new Advance Care Directive now replaces the existing Enduring Power of Guardianship and Medical Power of Attorney with a single form. The new form is a legally binding document that allows you to write down your wishes for future health care, end of life, preferred living arrangements and other personal matters.
You then appoint one or more Substitute Decision-Makers to make these decisions on your behalf if you cannot do so in the future. An Advance Care Directive can’t be used to make financial or legal decisions and does not act as a Will.
A Substitute Decision-Maker is someone you trust to make decisions on your behalf that you would have made for yourself. The person you choose can’t make decisions that would be illegal or make financial or legal decisions on your behalf.
The Enduring Power of Attorney can be used to make decisions about your financial and legal matters. It can be written at any stage of your life as long as you are 18 years of age or older and understand what an Advance Care Directive is.
Your Advance Care Directive starts when you can’t make your own decisions relating to personal and health matters. You can make your decisions if you can understand information about the decisions, the risks and benefits associated with your choices, and tell someone why you made that decision.
There is no better time to start planning your estate than right now. In South Australia, start by building your Will and then start making your Enduring Power of Attorney and Advance Care Directive.
If you’re looking to start by creating your Will, then click here. And if you’re ready to start planning your estate, then check out our complete estate planning guide for South Australia.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.