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

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.

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

Related posts

Appointing the Public Trustee

We often receive many enquiries about the advantages and disadvantages of appointing the public trustee as an executor and trustee in Wills. In this article we will explore briefly some of those advantages and disadvantages to help you make a decision when it comes time for you to make your Will.

In NSW, the public trustee is now called the NSW Trustee and Guardian – a merger between the Public Trustee NSW and the Office of the Protective Commissioner (1 July 2009).

The NSW Trustee and Guardian have four main roles, being:

  1. Will Making
  2. Estate Administration
  3. Corporate and Individual Tasks
  4. Powers of Attorney.

The NSW Trustee and Guardian can assist

you with drafting your Will for free so long as they are appointed the executor and trustee in your Will. As they have been around for a long time they are well experienced in drafting Wills. There are also benefits associated with them being your executor and trustee – as they are not related to you or your beneficiaries, they are more likely to be impartial and will follow your Will to the letter.

However, allowing the NSW Trustee and Guardian to draft your Will and appointing them as your executor and trustee does have its disadvantages. The primary disadvantage is that as they are your executor and trustee, they are entitled to be reimbursed for their costs in administrating your estate. Some of these costs will depend on the value of your estate, and are assessed at a percentage of the value of your estate. Naturally, some of these costs may be saved if you appoint a beneficiary or a person related to you as the executor or trustee of your estate.

Having an impartial organisation administrating your estate can also be disadvantage in some situations, as they may not understand your underlying intentions or your family situation when drafting your Will. It is in such situations that having a family member as your executor and trustee, a person who understands you and your particular way of thinking, will certainly be more beneficial than having the NSW Trustee and Guardian administrate your estate.

In summary, the advantages of having the NSW Trustee and Guardian appointed as your executor and trustee are:

  • Free Will drafting
  • Experience in managing estates
  • Independent and impartial

The disadvantages of having the NSW Trustee and Guardian appointed as your executor and trustee are:

  • Costs based on a percentage of your estate
  • Not likely to understand your particular family situation

When drafting your Will you should take all these matters into consideration. To find out more about Will drafting please give us a call or use the quick contact form located on this blog.

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.

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

Related posts

Assets in Foreign Countries

We now live in a global society and it is certainly not uncommon for individuals to own assets in foreign countries. These assets may be stocks, shares, or real and personal property.

You might own assets in a foreign country. There’s many reasons why you would – you could be an investor looking to maximise your leverage. You could be a migrant and have some residue property interests in your home country. Regardless of your reasons, an important matter to consider is how these may be affected when you pass away.

If you are drafting a Will to

deal with your assets when you pass away, you should take into account the following considerations:

  • What kind of assets do I have and can they a type of asset that I can dispose of in my Will?
  • What are the Will-making requirements of the foreign country?
  • Will the foreign country accept a Will drafted in another country?
  • Are there any conflicts of laws between the foreign country and Australia?
  • What can I do to prevent any conflicts of laws?

Fortunately New South Wales is a jurisdiction that recognises foreign Wills as valid so long as the foreign Will is also considered valid in the country of it’s origin. Despite this, that doesn’t change the fact that this is tricky business. If you own assets in a foreign jurisdiction and you intend to draft or update your Will, you must consider these matters carefully.

We can help out with these matters and should you need assistance with these complex questions, please do not hesitate to contact us using the quick contact form on this blog.

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.

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

Related posts

Superannuation Binding Death Benefit Nomination

In general, any death benefits paid out by your superannuation is not dealt with by your Will, and in those circumstances the Trustees of your superannuation fund have the discretion to determine who your death benefits are paid out to.

The superannuation law allows for you to direct the Trustees of your superannuation fund to distribute your death benefits to particular individuals after you pass away. This nomination is known as a Binding Death Benefit Nomination and binds the Trustees to your decision.

You can nominate any of your dependants, including any person who was financially dependant on you at the time of your death. You can even nominate that the death benefit is paid into your Estate, which then allows for your Will to deal with your superannuation.

As previously discussed, in the absence of a Binding Death Benefit Nomination your Trustees will make a determination as to who the death benefits should be paid

to. It is not unusual for the Trustees to make a ‘lazy’ determination and nominate that the whole amount is paid to your spouse or your next of kin. This may not be in accordance with your wishes.

A Binding Death Benefit Nomination is valid for three years, at which time it should be renewed. You can change your nomination or revoke your nomination at any time by advising and sending the necessary notices in writing to your superannuation fund.

If you have a self-managed superannuation fund you should check the trust deed that establishes the self-managed superannuation fund in relation to who or how your death benefits are paid when you pass away. If this is not an area which is covered by your SMSF’s trust deed, you should consider amendment of the trust deed.

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.

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

Related posts

Can I prepare my own Will or use a "Do It Yourself" Kit?

It is quite common to see “Do It Yourself” Will Kits in Newsagents or Post Offices. They are often inexpensive and contain directions in relation to how they should be filled out.

There is nothing stopping you from drafting your own Will or using one of these Will Kits – that being said, a Will must conform to strict legal requirements and

if it fails those requirements the Courts may decide that it is not a valid Will. If this is the case then there is no Will, and your assets may be distributed in a manner which was not your intention.

A person who is not legally qualified will risk making a mistake, creating further complications or uncertainties for the loved ones they leave behind. It is not unusual for self-drafted Wills to contain ambiguous or unclear phrasing, or using words that may have a different meaning at law. Only a Court can resolve that ambiguity (or declare the Will invalid), and this could come at a substantial cost.

As a Will is an important legal document we recommend that you should have your WIll professionally drafted, to ensure that your wishes are properly recorded, clearly set out, and carried out by the right people. We can help you with all of that – if you have any questions, contact us using the quick enquiry form on this blog.

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.

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

Related posts

Planning for the future

Estate planning can help avoid complications that can arise following the death of a loved one. With an ageing population in Australia, proper estate planning is critical to ensure that your loved ones are adequately taken care of and have directions as to what to do when you move on.

Estate planning can include the following matters:

  • Having a Will
  • Having adequate life Insurance
  • Making sure your superannuation benefits go to the right people
  • Having a list of all your assets and liabilities
  • Having an enduring power of attorney
  • Having an enduring guardian
  • Having an Advanced Health Directive

Estate plans should never be considered permanent as considitions, whether financial or personal, change. Your plans should be reviewed perhaps every five years or so, or whenever there has been an important or significant change in your life, such as the acquisition of a significant asset or liability, or the birth, death, or marriage of someone in your family.

We can help you

review your estate plans – and where possible, help you transfer your assets to the next generation in the most effective way possible. If you have any questions please do not hesitate to contact us using the quick enquiry form on this blog.

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.

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

Related posts

Exit, Stage Right – Do you Need to Sell your Business to Retire?

Many business owners who had been looking towards retirement placed these plans on hold as they focused on surviving the GFC. As business and the economy recovers, we spoke to Noel Johnson of Johnsons Corporate about how they are finding the market for the business sales.

The market for the sale of businesses stopped practically dead with the GFC according to Noel, essentially as though someone had turned off a light switch. Most buyers retreated to protect their existing assets, while those who remained in the market were looking to take advantage of distressed vendors and obtain a bargain. Most vendors throughout this period saw the GFC as being merely a blip, and so still placed a pre-crisis value on their business. The end result was that the gulf between buyers and sellers expectations was too large to bridge and no transactions occurred.

Both sides have now become more realistic. Vendors have realized that the GFC is not just a hiccough but a longer term issue, and that valuations have been and will continue to be impacted. Potential purchasers in most cases haven’t been able to get the bargains they thought they could, and so have realized they will need to pay up. As a result, more transactions are occurring.

The process is still a long one though. Noel’s firm deals with businesses valued at between $1 Million and $20 Million, and these are taking 4 to 12 months with an average time of 8 months from first discussion to settlement.

The profile of buyers has changed over the past 5 years. Prior to the GFC, 20% to 25% of businesses would sell to first time buyers including new entrants, private equity firms and businessmen looking at moving in a new direction. These buyers are no longer present, and sales are now solely to businesses in similar or associated industries. These buyers are looking for add on and synergistic purchases, where they have an opportunity for growth without excessive levels of risk. These buyers are able to obtain funding from their bank, whereas he is not seeing any bank support for new market entrants. Banks appear to be trying to look after their own clients, but they are being selective. Noel’s information is that it is difficult to obtain funding without a good relationship with your bank.

Most good businesses are much stronger financially than before the GFC. In a pattern we have seen replicated across the big end of town, businesses have paid down their debt and have adjusted their capital position. For those looking to grow by acquisition, this places them in an ideal position.

For businesses looking to grow, now might be an ideal time to expand. While the economy is improving, it is more likely that we will see gradual growth rather than a sudden acceleration over the next few years. In this in case, acquisitions might be one of the few ways to achieve significant growth. Worth considering is that it might be easier to put the right team together now as people’s expectations around earnings are much more realistic than a few years ago.

Many businesses have realized this, and as a result we are seeing greater levels of consolidation. One result of this is that the strong are getting stronger while the weak are declining, and competition is reducing as a result.

For business owners looking towards their retirement, Noel’s advice is to consider whether you have the energy and enthusiasm to grow the business over the next few years. The GFC has taken its toll on many people and if you don’t have the energy to grow the business, you may at best be marking time until you sell. In this instance, you might be better advised to sell and retire and move onto the next stage of your life.
Unfortunately most businesses aren’t geared for sale. If you are considering selling your business in the next few years, a valuable investment could be conducting a health check on it. The results should help you pinpoint the areas a potential buyer will view as a risk, and will allow you to take steps to mitigate these risks. This should help improve the saleability of your business, and hopefully also increase the value.

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. The Importance of Insurance – Life Insurance and Business Insurance

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

Related posts

Law Week – Elders Law presentation (16 May 2011)

We are proud to announce that as part of Law Week, Phang Legal will be conducting an Elders Law presentation at the Auburn City Council Library on 16 May 2011 starting at 3.30pm. This is a free event and all are welcomed.

Topics will include the importance of a legally valid and current will, enduring power of attorney and enduring guardianships.

Our associate solicitor, Ms Natalie Lim will be chairing the presentation which is intended for a largely Chinese-speaking audience. The presentation will be attended by the members of the Auburn Asian Elderly Friendship Group and the Auburn Chinese Elderly Support Group.

Thank you to the Law Society and the Auburn City Council for organising this event and inviting us to present.

If you are interested in attending the Elders Law presentation, please contact Mrs Annetta Kucharska on (02) 9735 1331 or email her at annetta.kucharska@auburn.nsw.gov.au. We look forward to seeing you there.

Related posts:

  1. Good Will Week 2010
  2. What is a Power of Attorney?
  3. What is an Enduring Guardianship?

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

Related posts

Choosing an Executor

Appointing the right Executor makes all the difference

It is important to have peace of mind after making a Will. Part of the Will-making process involves the election of one or more Executors.

Your Executor is the person that you choose to help you “execute” or carry out the instructions in your Will. Your Executor will take charge of your assets and property after you pass away, and see that the funeral and administration expenses as well as your outstanding debts or taxes are paid, before distributing the balance of your assets in accordance with your instructions.

You can choose more than one person to be your Executor, and you can have them act together or in an individual capacity.

Because your Executor carries out such an important function it is important that you choose your Executor wisely. Your Executor can be a family member, a person named in your Will, a beneficiary, or an independent person, unrelated to your family, such as a solicitor. Depending on the dynamics of your family, you should carefully consider who you elect as the Executor of your Will.

It is common for family members to be elected Executors, however if a family has not been getting along well it might be wise for you to elect an independent person to become an Executor.

Before settling on an Executor you should discuss your intentions with your intended Executor. That person must be comfortable with assisting you with taking care of your estate.

You should also consider if there is any need to appoint an alternate Executor, as there may be unexpected circumstances which may cause your first choice of your Executor to be unable to become your Executor.

Most importantly of all, you must have peace of mind at the end of the process, knowing that your Executor will carry out your last wishes in accordance with what you have in mind.

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.

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

Related posts