Where there’s a will (or not) there’s a way

Where there’s a will (or not) there’s a way


Tuesday, August 13, 2013






It can be difficult thinking about estate planning. However it’s one of those areas of life where planning ahead is essential. It can save you and your loved ones a whole lot of bother at a very difficult time. But what are the different options?

There are three legal documents that every person should have: a will, an enduring power of attorney, and an enduring power of guardianship. Most of you would be familiar with the function of a will – it disposes of your assets after you die to your nominated beneficiaries. An enduring power of attorney gives the person you nominate the power to make decisions about your finances. An enduring power of guardianship gives the person you nominate the power to make your medical decisions and decide where you live. The difference between an enduring power of attorney and a power of attorney is the enduring power of attorney continues to operate once you lose mental capacity. Similarly with an enduring power of guardianship.

But what if a person loses mental capacity and does not have a Will? In those circumstances an application can be made in the Supreme Court of South Australia for a statutory will.  The Supreme Court will look at what the person’s wishes would be if they had capacity, and make a will after reaching that decision. Any evidence as to what the person would want or wanted before they lost capacity is highly relevant. So too is evidence about the interests of family members or those who would have a right to claim on the person’s estate.

If a person lacks capacity and does not have an attorney or guardian the answer is an application to the Guardianship Board of South Australia. The Board looks at the most appropriate person in the circumstances to be appointed as a Guardian or Administrator. Where there is no other alternative the Board may appoint the Office of the Public Advocate as a Guardian or the Public Trustee as an Administrator.

There is always a way for someone’s rights to be protected, regardless of whether they have mental capacity or not. Being prepared can save you and your family a lot of heart ache, time and money.

At Boylan Lawyers we offer flat rate estate planning packages including enduring powers of attorney and guardianship, so you always know what you’re going to be charged in advance. Call us for advice about your options and to make an appointment today!

Jack Hetzel-Bone