Advance Care Directive

An Advance Care Directive sets out your preferences for medical treatment, should you be unable to make those personally. There are two kinds of Advance Care Directives: instructional directives and values directives.

Instructional directives should expressly state which procedures you consent to or wish to refuse so that the document operates as if you were to give consent to, or refuse, such a treatment on the day. For example, an instructional directive could include express consent to the use of a ventilator in the circumstances of respiratory failure, or express refusal of CPR if there was a chance of there being significant impairment as a consequence of the medical event.

If you have lost decision-making capacity but have an instructional directive in place, a health practitioner must give effect to that directive, unless the excluded treatment is deemed by them not to be clinically appropriate.

Value directives do not specify which treatments you consent to or refuse; rather, they contain statements about preferences and values which will then provide guidance for any medical treatment decisions. An example of a suggested statement is ‘if I cannot recognise my children, I no longer wish to receive medical treatment’ or ‘I would like my treating health practitioners to take all reasonable steps to prolong my life’. Again, if you have lost decision-making capacity but have an appropriately worded directive in place, a health practitioner and your medical treatment decision maker must consider such values directive(s) when making their decisions.

Advance Care Directives are therefore important for ensuring that your wishes for your physical health are carried out.

Advance Statement for Mental Health

An Advance Statement for Mental Health is similar to an Advance Care Directive, but operates specifically to give instructions on treatment should you require compulsory hospitalisation under the Mental Health Act 2014. We recommend making an Advance Statement for Mental Health if a client has previously been hospitalised due to mental illness.

The directives may include:

• Treatments and strategies that you have found helpful in the past
• Conversely, treatments and strategies that you have not found to be helpful
• Preferences for or against certain types of treatment, such as particular drugs or electroconvulsive treatment

Whilst a psychiatrist must have regard to the treatment preferences expressed in the Advance Statement, it is also permissible to include matters which are “non-binding” but which may be useful for your treatment team, such as details of your general health, daily routine and dietary preferences.

Company Power of Attorney (also known as Corporate Power of Attorney)

A Company Power of Attorney appoints someone to act on behalf of a company (rather than one issued by its officers which only relates to actions which may be undertaken on their behalf personally). These Powers are usually created by company directors or board and take effect should the director(s) lose decision-making capacity.

It is also possible to make a Company Power of Attorney for a fixed term to cover situations such as where a director is overseas and needs someone to carry on the business in Australia. An attorney for a company can do anything that a company director can lawfully do, such as:

• Oversee the operations of day to day affairs
• Issue or cancel shares in the company
• Grant options over unissued shares in the company
• Distribute any of the company’s property (which includes dividends) among the members

As referred to in our previous post on Powers of Attorney, a Company Power of Attorney is a straightforward method of allowing an attorney to have control of an SMSF where the trustee is a company and to be able to make all decisions that the trustee company of the SMSF can make in such capacity subject to the provisions of the trust deed.

A Company Power of Attorney is also important for the execution of documents. Under Section 127 of the Corporations Act 2001, most companies can only execute a document with the signature of two directors or a director and a company secretary. If one director loses capacity and does not have a Power of Attorney in place, it becomes very difficult to carry out any business of the company. If spouses are co-directors of a company and, for example, the company owns real estate, the spouse with capacity would not be able to sell that property to fund the member’s retirement or care without a valid Power of Attorney granted by the company in place.

Accordingly a Company Power of Attorney resolves any such issues of directors or secretaries losing capacity. It has the effect of appointing an agent of the company (the attorney) who can execute contracts alone under Section 126 of the Corporations Act. This provides security for the equity holders should the directors be unable to oversee the management of its affairs.

If you do not have advance planning documents in place, it’s time to consider which of the above documents (and those covered in Part One) are right for you. Contact Tony today to tailor your Estate and Succession Plans to your needs.

The post Powers of Attorney and Related Documents Explained – Part 2 appeared first on Tony Kelly Lawyer & Estate Planner.

Our online presence is, in effect, today’s shoebox of treasured possessions, containing electronic correspondence, images, and other “virtual” mementos. There also a myriad of other related issues such as banking and social media accounts which require a knowledge of your passwords to provide access. However, managing them after death or incapacity can be much less straightforward than a box under the bed!

By planning for how these assets can be managed after your death and providing access to accounts relating to banking, email, websites and social media profiles, you can ease the administration of your estate and the process for your loved ones in dealing with these issues and your on-line presence subsequent to your passing.

Despite 69% of Australians being active social media users, 83% have not discussed with their loved ones what they want to happen to their social media accounts when they die. Further, only 3% of Australians who have a Will have included instructions on what to do with their online accounts after their death. Failing to prepare for your digital legacy can cause complications and delay for those managing your estate and can compromise the privacy and security of information you have kept online.

Australia does not yet have specific legislation regarding the management of digital assets so families have no clear framework as to their rights, access and ownership of the online life left by the incapacitated or deceased loved one. Moreover, internet companies each have different terms and conditions regarding what happens to a person’s account when they die and policies surrounding the ownership of data, the possibility to deactivate or memorialise an account by someone other than the account holder and the ability to appoint a digital executor in circumstances of incapacity or death.

Planning for your digital legacy is therefore crucial and can be done by taking a few, relatively simple steps.

Firstly, create a detailed list of your digital assets. Whilst there is no formal definition, these can include:

• Hardware e.g. computers, phones, external hard drives, cameras
• Personal accounts e.g. email, internet banking, social media profiles, online storage, websites, blogs
• Information or data stored electronically e.g. documentation, mailing lists
• Intellectual property e.g. domain names, trademarks, code, copyrighted materials

To ensure those authorised can gain access to your accounts, you must also provide all passwords and login details. Given the sensitivity of this information it is best you store these online using secure Password Management software or include them in a non-binding letter such as a Memorandum of Wishes and have it kept in a secure location. Note that it is not advised to provide this information in your Will as it will ultimately come into the public domain.

Once you have created your digital asset register, make a plan of what you want to happen to each asset. Carefully consider the directions you give for each account and who you want to nominate to perform them. Some directions you could give include:

• Closing or deleting accounts;
• Downloading the contents of an account or transferring it to a beneficiary;
• Archiving and saving accounts using online memorialisation programs
• Locking websites and closing domain names;
• Shutting down any online businesses and directing where revenue should be transferred;
• Nominate beneficiaries for digital devices and instruct them on what to do with the content.

As we rapidly move our lives more online and accumulate extensive digital assets, it is fundamental to include in your estate planning, provisions and careful instructions for how your digital life will be preserved and managed by your loved ones when you are gone.

The post Providing your legal representative with access to your online assets appeared first on Tony Kelly Lawyer & Estate Planner.

The proceeding involved a member of an SMSF who no longer had legal capacity, and the purported extension of the member’s expired BDBN by the holder of his enduring power of attorney signing a document referred to as an “extension of death benefit binding nomination form”.

The Court upheld this as valid based on the provisions in the member’s trust deed which expressly allowed a validly appointed attorney/s to exercise any power given to a member in the deed if the member had a legally recognized disability. Importantly, the Court also found the member’s financial enduring power of attorney did not contain restrictions on the attorney’s power, and ruled that the purpose of signing such an extension was in accordance with the member’s original wishes.

If you are a members of an SMSF, it is pertinent for you to consider the issues raised in this case and take a few simple steps to ensure the following:

• That there are provisions within your deed to avoid any costly and unnecessary complications by checking that the fund’s deed allows a member to make a “non-lapsing” BDBN so that it does not need to be renewed every three years and to prepare a BDBN accordingly;
• Consider whether you are comfortable granting your power of attorney the authority to make an amendment to your BDBN due to loss of mental capacity if circumstances were to change;
• If so ensuring that your power of attorney document provides an express clause in which the attorney’s power is addressed regarding your BDBN with any desired limitations, and
• Further, depending on circumstances and jurisdiction, it may also be necessary to provide a clause which expressly permits the attorney to defend any attempts by a party who objects to alteration of the terms of the BDBN by your attorney.

The post The Benefit of a Non-Lapsing Binding Death Benefit Nomination (BDBN) appeared first on Tony Kelly Lawyer & Estate Planner.