What is an Enduring Power of Attorney

An Enduring Power of Attorney is a document where you may appoint an Attorney to make decisions about financial matters or personal matters (including health matters), during your lifetime. It is important that you appoint a person/s to act as Attorney to manage your affairs.

It is not uncommon for an Enduring Power of Attorney to provide unlimited power to an Attorney to make financial decisions. That is, your attorney can do anything you can do. However, you may prefer to specify or limit your Attorney’s power to make certain financial decisions. For example, you may wish that the Attorney’s power to be limited to the occurrence of an event (only where you no longer have capacity as determined by a medical practitioner to make decisions) or have restrictions on the types of decisions an Attorney may make (eg: restricted from selling any real estate, restricted from making a Binding Death Nomination in respect of superannuation).

We offer a fixed fee service for the preparation of an Enduring Power of Attorney. We welcome you to contact our office to arrange an appointment to discuss your estate planning affairs on (07) 3278 1888.

Why make a Will?

A Will is a legal document providing directions as to the division of your estate (the assets that you hold), upon your passing.

If you pass away without a Will, you are taken to have died “intestate.” This means that your estate will be distributed according to the intestacy rules contained in the Succession Act 1981 (Qld) (“Succession Act”). In other words, you will have no control over the division of your assets.

The intestacy rules for distribution depend upon whether the deceased was survived by a spouse (husband/wife/ de facto partner/ civil partner). Where there is 1 surviving spouse and children:

  1. the spouse will receive $150,000.00, the household chattels and a portion of the residuary (balance estate);
  2. if there is only 1 surviving child- the spouse will receive 1/2 of the residuary estate;
  3. if there is more than 1 surviving child- the spouse will receive 1/3 of the residuary estate.

Where there is no surviving spouse or children, your “next of kin” will receive your estate, being (in order of priority):

  1. your brothers and sisters;
  2. your grandparents;
  3. your aunts and uncles;
  4. your nieces and nephews;
  5. your cousins.

The intestacy rules contained in the Succession Act may not reflect your intention as to the division of your estate. Therefore, in order for you to decide as to the distribution of your estate, it is necessary that you have a valid Will.

We welcome you to contact our office to discuss our competitive fixed fees for your estate planning needs on: (07) 3278 1888. 

Buyer Beware – Purchasing a property under COVID 19 conditions

If you are intending on purchasing a property under COVID-19 Pandemic conditions, you need to carefully consider the following:-

  • The current COVID-19 Pandemic situation may mean that the time periods and obligations under the standard REIQ Contract (“the Contract”) could be impacted by further closures or unavailability of parties which may be outside the control of the parties and not be currently foreseeable.
  • Given the current circumstances, your finance approval could be at risk of being withdrawn prior to settlement. Most financial institutions will reserve the right to withdraw finance approval at any time prior to settlement for any number of reasons.  Reasons they may withdraw the approval include if your personal financial circumstances change or the value of the Property is adversely affected. That may cause your financier to decline to provide finance to complete the purchase.
  • In cases where finance is withdrawn, and the Contract is unconditional as to finance, you would still be obliged to complete the Contract.  If you do not have sufficient funds to pay the balance purchase price (including any adjustments) at settlement the Seller may terminate the Contract or seek to have you specifically perform the Contract and, in both instances, can keep your deposit and claim compensation from you (such as loss on resale which may be significant in the current volatile property market).
  • If these issues were to occur then it is highly unlikely you will have a contractual remedy to help you and you may be unable to avoid breaching your Contract, be financially impacted or suffer other loss or hardship.
  • If you are buying the property for investment purposes to lease to a tenant be aware that there may be government schemes which impact the operation of some tenancies. For example, in 2020 the Queensland government tabled regulations to change the operation of residential tenancy arrangements in response to the COVID-19 Pandemic. These changes  included:
  • a moratorium on evictions due to rent arrears for tenants experiencing excessive hardship due to the impacts of COVID-19 Pandemic;
  • an obligation on landlords to offer extensions of tenancies in some circumstances;
  • immediate termination rights for tenants who are escaping domestic violence;
  • caps on tenant break lease costs in some circumstances; and
  • limits on a landlords’ rights to inspect the property during the sale process. 
  • These regulations may affect:
  • your ability to obtain access to the property for inspections ordinarily allowed under the Contract prior to settlement;
  • some duty concessions;
  • if you are expecting vacant possession, the ability of the Seller to require the tenant to leave prior to Settlement;
  • the ongoing payment of rent under the lease; and
  • your ability to manage and enforce the terms of the tenancy agreement.

Whether the above matters will apply to your purchase at the relevant time or impact your rights may not be immediately apparent. You should seek legal advice from us immediately if any of these matters are of concern to you.

The standard residential Contract contains a standard Suspension of Time provision for a Delay Event. However, we advise this provision is likely to be construed quite narrowly (as it was not drafted with the COVID-19 Pandemic in mind) and:

  • only relates to the inability of a party or their representatives to perform settlement obligations (as defined), and not to other obligations or to dates for satisfaction of conditions;
  • does not specifically refer to a pandemic event;
  • requires the inability to perform to be ‘solely as a consequence of’ a Delay Event and will not apply if the Property is destroyed or finance is withdrawn;

Depending on the circumstances in any particular matter, the standard clause is highly unlikely to protect you during the COVID-19 Pandemic.  We therefore recommend you seek for the delay event under the terms of Contract to include a “pandemic”.

If, despite the current uncertainty and potential for delay or unforeseeable risks you wish to proceed with a purchase, we strongly recommend that you consult us as to some very important amendments we can make to the proposed Contract prior to you signing.

For example, a special condition (or other contractual solution) may be included in the Contract to deal with some of the foreseeable issues as highlighted above. You should allow sufficient time for special conditions to be drafted and contemplated before the Contract is signed. However, again we warn you that even if we are able to negotiate a special condition (or other contractual solution) this does not mean that we will be able to incorporate provisions for all unforeseeable risks.

A purchase of property at this time under pandemic conditions is a very risky enterprise!

COVID 19 – Is it time to review your estate planning?

Given the impact of the Coronavirus pandemic, it might be time to review your estate planning documents to ensure that your wishes are carried into effect. We do recommend that you review your Will every twelve (12) months, or whenever your circumstances or the circumstances of a person mentioned in your Will change, for example, when a beneficiary, executor, trustee or guardian dies, or when a trustee becomes bankrupt or loses capacity.

There are a number of significant life events that can affect your estate planning. These include:

  1. If you separate or become estranged from a spouse (including a marital partner or civil partner), these events generally will not have the effect of automatically revoking your Will, any enduring power of attorney, Binding Death Benefit Nomination/s or insurance beneficiary. 
  2. If you separate from a de facto partner (including same sex), then this may revoke your Will, but will not revoke your enduring power of attorney, Binding Death Benefit Nomination/s or insurance beneficiary.
  3. If you enter into a de facto relationship (including same sex), then this will not revoke your Will, your enduring power of attorney, your Binding Death Benefit Nomination/s or insurance beneficiary.
  4. If you divorce, marry, or commence or terminate a civil partnership, your Will and/or any enduring power of attorney may be automatically revoked (either partially or fully).  However, Binding Death Benefit Nomination/s and insurance beneficiary/ies may not be affected.
  5. If you have a child then this does not have the effect of revoking your Will, Binding Death Benefit Nomination/s or insurance beneficiary. That child may be entitled to make a Family Provision Application against your estate which has the result of significant costs and delays to the administration of your estate. However, if you have a Binding Death Benefit Nomination and/or insurance beneficiary nominated which is valid at the date of your death, then that child may not be entitled to receive the proceeds of your death benefit or insurance payout.
  6. If a beneficiary mentioned in your Will dies and there are no succeeding beneficiaries referred to in your Will, then their entitlements may be distributed in accordance with the intestacy rules. Similarly, if a beneficiary mentioned in your Binding Death Benefit Nomination/s dies, then your superannuation death benefits will be paid to a spouse, child, dependent or your estate as determined in the superannuation trustee’s absolute discretion. Similarly, if your nominated beneficiary for an insurance policy dies, then the insurance company may pay to another person or your estate (depending on the terms of your insurance policy).

If any of these life events have occurred, it will be necessary for you to have your estate plan reviewed and potentially make a new Will, enduring power of attorney, relevant Binding Death Benefit Nomination/s and Insurance Beneficiary Nomination.

Binding Death Nomination/s in relation to any Superannuation Policies/ Pensions held by you

We confirm that if you do not have a valid Binding Death Benefit Nomination in place at the date of your death, then the trustee of your superannuation fund has the discretion as to whom it may pay your superannuation death benefits, within a range of eligible persons (such as a spouse, child, dependent or your estate). The trustee may decide to pay your superannuation death benefits in a manner that is not in accordance with what you ultimately wanted. Accordingly, it is important to have an up-to-date valid Binding Death Benefit Nomination at all times.  

We do recommend that you make a Binding Death Benefit Nomination (subject to your accountants or financial advisors advice) so that your estate plan can be carried out in accordance with your instructions. If you do not make a Binding Death Benefit Nomination then this may affect the value of your estate and may mean that your superannuation death benefits are not paid to your preferred beneficiary/ies.

Where lapsing Binding Death Benefit Nomination’s made

Your Binding Death Benefit Nomination will lapse three (3) years after the date it was made. We recommend that you diarise this date and, at least a month prior to the nomination lapsing, you arrange for the superannuation fund to have the necessary form/s sent to you to have the nomination renewed. Failing to remember this date may affect the value of your estate and may mean that your superannuation death benefits are not paid to your preferred beneficiary/ies.

If SMSF and accountant/other person doing Binding Death Benefit Nomination

We confirm that if you have a self-managed superannuation fund and your accountant/financial adviser is preparing same your Binding Death Benefit Nomination must strictly comply with the terms of your superannuation fund trust deed and the superannuation legislation in both form and procedure. Failing to comply with both form and procedure for making a Binding Death Benefit Nomination for your self-managed superannuation fund may mean that any such nomination will be invalid. This may affect the value of your estate and may mean that your superannuation death benefits are not paid to your preferred beneficiary(s).

Advance Health Directive

We confirm the purpose of an Advance Health Directive is to give you confidence that your wishes regarding health care will be carried out if you cannot speak for yourself.

Life Insurance Policies

We recommend you seek advice in relation to beneficiary nominations for any life insurance policies held by you.

Review of your estate planning in terms of your businesses, companies and or trusts

We confirm that if you have any businesses, companies and/or trusts this may necessitate review of your estate planning.

Please telephone our office if you would like to make an appointment to review and update your estate plan.

Husband fined for purchasing cryptocurrency

In the recent case of Lescosky & Durante [2020] FamCAFC 179, a Husband was fined $54,000.00 for purchasing cryptocurrency to the value of $180,000.00.

The parties had been engaged in contested property settlement proceedings. The Husband set up two new bank accounts and transferred the sum of $180,000.00 over an 11 day period, which was utilised to purchase the cryptocurrency.

The issue with the purchase of the cryptocurrency by the Husband, was that this breached (“contravened”) a Court Order. The Court Order provided that:

  • the Husband was restrained from transferring or otherwise disposing of any asset exceeding $1,000.00 in value (save in the ordinary course of business); and
  • prior to transferring or otherwise disposing of any asset exceeding $1,000.00 in value, the Husband was to provide seven (7) days written notice of his intention to deal, to the Wife’s solicitors.

The Court proposed that “payment of the fines be made by the Husband, namely from his entitlement in the property settlement proceedings.”

This case serves as a reminder as to the powers available to the Court, where there is a contravention of a Court Order.

If you have any queries in relation to Court Orders, or require assistance with a property settlement, please call us on 07 3278 1888.

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