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.

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When should I review my Will?

Life is hardly ever stagnant. People get married, have kids, buy houses, and sometimes hit the lottery.

Circumstances in your life always change, and because of that, having a Will that doesn’t take into account those changes in your circumstances is hardly ever appropriate.Certainly a Will can be put together to take into account future circumstances, but it can’t possibly cater for everything.

As a general rule of thumb, you should review your Will (or if you don’t have one, you should draft one up!) on any of the following events:

  • Getting married, or entering into a long term de facto relationship
  • Moving house, or moving abroad
  • The birth of children or grandchildren in the family
  • The death of your spouse, partner or other family member of your family
  • On your children reaching the age of 18
  • Divorce or separation
  • On the sale of a significant asset, such as investment properties or family businesses
  • A significant change in personal finances, such as winning the Lotto or receiving some money from a Will
  • On your retirement
  • The death of your spouse, partner or other member of your family

In addition to this, it’s often a good idea to review your Will every five years or so.

Lots of things can change in five years, after all.

Like we said – if you don’t have a Will – now’s a good time as any to get one sorted out.

 

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.

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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.

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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.

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  1. The Importance of Insurance – Life Insurance and Business Insurance

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Good Will Week 2011

Don’t put it off – set some time aside to

write or review your Will

Everyone aged 18 years and over should have a Will – however the NSW Trustee & Guardian’s statistics show that over 45% of people in New South Wales do not have a Will!

Between 18 September 2011 and 24 September 2011, the NSW Trustee & Guardian will be running Good Will Week, its annual education campaign to encourage adults in New South Wales to have an up-to-date and legal will.

We will also be encouraging our clients to review their existing estate and succession plans and to prepare or update their Wills.

Not having a Will, or having a Will that is invalid or incomplete can result in intestacy and further complications for your family and loved ones that you leave behind in dealing with your estate. Those complications are unnecessary and can be avoided with a few simple steps – starting with having your Will prepared for you by a suitably qualified professional.

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.

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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.

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