Tag Archives: guardianship

Help! I’m not sure if the Power of Attorney is being abused!

Posted on by

We’ve talked about powers of attorney and enduring powers of attorney in the past on this blog. In summary, these are instruments allowing a person (the attorney) to be given the authority to act on another person (the principal’s) behalf in relation to financial matters.

The attorney must at all times act in the best interests of the principal. Unfortunately however we can never predict how people would behave, and we can never tell if someone is going to abuse the power of attorney given to them. Sometimes it may not be as clear cut as abuse either – perhaps the actions taken were well-intentioned, but nevertheless not in the best interests of the principal.

If the principal is still able to do so, revoking a power of attorney is simple enough, but if the principal no longer has the capacity to make their own decisions or to revoke

the enduring power of attorney, then a third party must bring an application to the Guardianship Tribunal to review the enduring power of attorney and whether it should be revoked.

This also means that the Guardianship Tribunal will have a make a decision about who should take over this job.

At the end of the day however, keeping all of the above in mind – when putting together an enduring power of attorney, it is extremely important that you choose an attorney that you can trust to do the right thing.

Want to know more about estate and succession planning?

For more information regarding our estates and succession planning services, including will preparation, powers of attorney, enduring guardianship, obtaining probate or letters of administration, and managing deceased estates, please use the quick enquiry form found on this page or call our office on 02 9687 8885. Our experienced estates lawyers look forward to assisting you with your estate and succession planning requirements.

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Related posts:

  1. What is a Power of Attorney?
  2. Enduring Power of Attorney – Some Considerations
  3. What is an Enduring Guardianship?

Tags: , , , , , , , , , , , , , , , , ,

Related posts

How can a Parent Care for their Disabled Child after their Death?

Posted on by

If you are the parent of a child requiring ongoing care as a result of a disability, planning for their care in the event of your death is a major issue. One of the vehicles that can help manage their financial well being is a Special Disability Trust.This structure allows you to nominate a person (or more than one person) to act as trustee and manage the financial affairs of your child. The trust is allowed to invest the funds for the purpose of paying for the care and accommodation of the principal beneficiary – your child. This may include purchasing and owning a suitable property for them to live in.

There are significant Centrelink concessions available with these arrangements. Firstly, assets up to $563,250 (indexed each year) are exempt from the assets test, and if a property is owned by the trust and used as the beneficiaries home, this is also exempt. In addition to this, Centrelink does not assess any income or distributions from a Special Disability Trust. These concessions may not be not available to beneficiaries of a normal trust (family/discretionary trust, testamentary trust), and may mean you can leave significant levels of assets for the care of your child and they can still be entitled to government assistance.

For parents above Age Pension age, there is also the opportunity to gift funds to a Special Disability Trust. Ordinarily Centrelink would regard any gift above $10,000 in a financial year ($30,000 over a rolling five years) as an attempt to deprive yourself of assets to increase your pension entitlements, and accordingly they would continue to assess these gifts as your assets. In the case of gifts by eligible family members however, up to $500,000 (combined) can be gifted to a Special Disability Trust for the care of your child and Centrelink would no longer count this as your asset. This could potentially make you eligible for Centrelink Benefits, or increase your entitlement to them.

There are a number of conditions that must be met to receive these concessions, and this article just provides a broad overview.

Want to know more?

For more information regarding our estates and succession planning services, including will preparation, powers of attorney, enduring guardianship, obtaining probate or letters of administration, and managing deceased estates, please use the quick enquiry form found on this page or call our office on 02 9687 8885. Our experienced estates lawyers look forward to assisting you with your estate and succession planning requirements.

This website is proudly supported by Phang Legal. This article was written by David Hazlewood and edited by Kenneth Ti, associate solicitor with Phang Legal.

Related posts:

  1. Moving Into Aged Care – Important Information
  2. Choosing an Executor
  3. Moving Into Aged Care – Important Considerations

Tags: , , , , , , , , , , , , , ,

Related posts

How can a Parent Care for their Disabled Child after their Death?

Posted on by

If you are the parent of a child requiring ongoing care as a result of a disability, planning for their care in the event of your death is a major issue. One of the vehicles that can help manage their financial well being is a Special Disability Trust.This structure allows you to nominate a person (or more than one person) to act as trustee and manage the financial affairs of your child. The trust is allowed to invest the funds for the purpose of paying for the care and accommodation of the principal beneficiary – your child. This may include purchasing and owning a suitable property for them to live in.

There are significant Centrelink concessions available with these arrangements. Firstly, assets up to $563,250 (indexed each year) are exempt from the assets test, and if a property is owned by the trust and used as the beneficiaries home, this is also exempt. In addition to this, Centrelink does not assess any income or distributions from a Special Disability Trust. These concessions may not be not available to beneficiaries of a normal trust (family/discretionary trust, testamentary trust), and may mean you can leave significant levels of assets for the care of your child and they can still be entitled to government assistance.

For parents above Age Pension age, there is also the opportunity to gift funds to a Special Disability Trust. Ordinarily Centrelink would regard any gift above $10,000 in a financial year ($30,000 over a rolling five years) as an attempt to deprive yourself of assets to increase your pension entitlements, and accordingly they would continue to assess these gifts as your assets. In the case of gifts by eligible family members however, up to $500,000 (combined) can be gifted to a Special Disability Trust for the care of your child and Centrelink would no longer count this as your asset. This could potentially make you eligible for Centrelink Benefits, or increase your entitlement to them.

There are a number of conditions that must be met to receive these concessions, and this article just provides a broad overview.

Want to know more?

For more information regarding our estates and succession planning services, including will preparation, powers of attorney, enduring guardianship, obtaining probate or letters of administration, and managing deceased estates, please use the quick enquiry form found on this page or call our office on 02 9687 8885. Our experienced estates lawyers look forward to assisting you with your estate and succession planning requirements.

This website is proudly supported by Phang Legal. This article was written by David Hazlewood and edited by Kenneth Ti, associate solicitor with Phang Legal.

Related posts:

  1. Moving Into Aged Care – Further Considerations
  2. Moving Into Aged Care – Important Considerations
  3. Moving Into Aged Care – Important Information

Tags: , , , , , , , , , , , , , ,

Related posts

What is an Enduring Guardianship?

Posted on by

Appointing an enduring guardian

An enduring guardian is someone you choose to make personal or lifestyle decisions for you when you are unable to make these decisions for yourself. You can specify what kind of decisions your guardian can make and you can also direct your guardian how to carry out those decisions. In addition to being someone that you can trust to make decisions in your best interests, the person that you appoint as your enduring guardian must be above the age of 18. You can appoint more than one enduring guardian, and you can even give them separate functions and responsibilities. You cannot appoint a person who, at the time of appointment, provides medical treatment or care to you on a professional basis, provides accommodation services or support services for daily living on a professional basis, or is related to one of these two criteria.

The enduring guardian must act within the principles of the Guardianship Act 1987, in your best interests, and within the law. Their capacity to make decisions on your behalf can be flexible or fixed. For example, you can direct your guardian to consult with your family or a close friend before making a particularly important decision.

An enduring guardian cannot make unlawful decisions and also cannot make a will for you, vote on your behalf, consent to marriage on your behalf, manage your finances, or override your objections, if any, to medical treatment.

While you can appoint an enduring guardianship, your enduring guardian will only start acting on your behalf when you lack the capacity to make your own decisions.

Enduring guardianship ends when you die or when you revoke the guardianship. There are also other conditions that may cause an enduring guardianship to end, such as if you marry, if one of the joint guardians dies, resigns, or becomes incapacitated (unless you provided for alternate guardians or otherwise), or if the Guardianship Tribunal revokes the appointment of the enduring guardian.

The Guardianship Tribunal reviews the actions of guardians and has the power to revoke or appoint an enduring guardian. In addition to this, the guardian may in specific circumstances request the Guardianship Tribunal to review the enduring guardianship or authorise certain decisions. Similarly you or someone on your behalf can request the Guardianship Tribunal to review the enduring guardian’s conduct should you or someone on your behalf object to the enduring guardian’s decisions.

Want to know more about estate and succession planning?

For more information regarding our estates and succession planning services, including will preparation, powers of attorney, enduring guardianship, obtaining probate or letters of administration, and managing deceased estates, please use the quick enquiry form found on this page or call our office on 02 9687 8885. Our experienced estates lawyers look forward to assisting you with your estate and succession planning requirements.

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Related posts:

  1. What is a Power of Attorney?

Tags: , , , , , , , ,

Related posts