It’s that time of year again when we are all scrambling, whether it be getting our work done for the year, finalising university exams, or the kids wrapping up the school term, everyone is looking forward to winding down and flying to an exotic destination for that much needed holiday. You have made sure you have booked a house sitter and pet sitting and have made arrangements for someone to come and water the plants – slowly ticking everything off the list.
But have you prepared your estate planning documents? It is important that you have the following estate planning documents in place before you travel:
- Will.
- Enduring Power of Attorney.
- Appointment of Medical Treatment Decision Maker.
Despite the slim odds of something drastic occurring while abroad, you can never be too sure. Why risk it when you can have your documents prepared by a solicitor and give yourself peace of mind?
What if you don’t have a Will or you have a Will, but it hasn’t been updated?
A Will is a legal document that outlines your wishes for the distribution of your assets when you pass away.
If you pass away without a Will, it is referred to as having died intestate, and your assets will be distributed in accordance with the laws of intestacy. As a result, you do not have say in how you wish your estate to be allocated and to whom.
If you pass away with a Will but haven’t updated it, it can also have similar consequences. You may be in a new relationship, but your existing Will provides that your former partner receives your estate, or you may have children now, but your existing Will was made when you didn’t have children, and it provides for your friends instead or you may have acquired more assets during this time and would prefer that these assets be given to certain people in your life.
What if you don’t have an Enduring Power of Attorney?
Numerous situations could occur while you are travelling. For instance, you may not be able to access your bank accounts or have issues with the tenants that are renting your investment property, or you may get injured and lose capacity. In these circumstances, if you don’t have an Enduring Power of Attorney (EPOA), no one will have the authority to make personal and financial decisions on your behalf.
An EPOA is the legal document that appoints someone (known as your Attorney) to make these decisions on your behalf. The ‘enduring’ nature of an EPOA means that it continues if you lose the capacity to make decisions for yourself.
An EPOA is crucial in the above situations because if you require someone to access your funds quickly or require a document to be executed urgently (rental documents, contracts of sale, etc). There are consequences of not having an EPOA, especially in circumstances where you lose capacity, which may be a total or partial or temporary loss of capacity. Without an EPOA your family will not be able to make financial or personal decisions on your behalf, and they would need to apply to the Victorian Administrative Civil Tribunal to be appointed. However, this can be avoided by having an EPOA in place before you travel.
What if you don’t have an Appointment of Medical Treatment Decision Maker
An Appointment of Medical Treatment Decision Maker (AMTDM) is a legal document that enables you to appoint someone to make medical decisions on your behalf when you are unable to make those decisions for yourself. The appointment of the medical treatment decision-maker only takes effect if you lose capacity,
If you lose capacity and you do not have an AMTDM the Medical Treatment Planning and Decisions Act 2016 (Vic) sets out who the default person is for making these decisions on your behalf. The default medical decision maker will be the first of the following persons who are in a close and continuing relationship with the person, provided they are reasonably available, willing and able to make these decisions:
- Your spouse or domestic partner;
- If you do not have a spouse/partner, your primary carer;
- If there is no primary carer, your adult children and, if more than one, the eldest; or
- If you do not have children, your eldest surviving parent;
- If you have no surviving parents, your eldest adult siblings.
This may not be your preference. For instance, perhaps you would prefer that your parent or your sibling makes the decision in regards to your medical treatment over your domestic partner, or you may prefer your friend to make that decision over your siblings.
Conclusion
Despite the fact that travelling on a plane is one of the safest forms of transport, anything can happen when you are away from home.
It is best to safeguard against unforeseen situations, so book a consultation with the wills & estates team today to prepare your estate planning documents before you leave.
