Thursday, 9 February 2017

What Other Documents Should You Consider When Getting a Will?

Author: Colin Flynn

The two most common documents that are drafted along with a Will are firstly, a Personal Directive, and secondly, Enduring Power of Attorney.  Having all three of the above mentioned documents should be part of any complete approach to planning for an individual’s final years.  Having all three can help a great deal in avoiding issues such as family infighting regarding what each family member believes your wishes to be.

The Enduring Power of Attorney
An Enduring Power of Attorney (EPA) is a document that you sign while you still have capacity, which enables someone else to look after your finances when you cannot (ie. when you lose capacity).  If you do not have an EPA it will be necessary for someone to apply to the courts for an order of Trusteeship should you become incapacitated.

The Personal Directive
Should you become incapacitated, the Personal Directive gives your appointed agent the authority to determine where you live and the kind of medical treatment you receive, as well as other personal decisions not dealing with your assets.

The Personal Directive should also contain what is morbidly referred to as a “Pull the Plug” clause, which provides for the type of treatment you are to receive in order to prolong your life. You should specify whether or not you wish for your life to be prolonged by artificial means when in a coma or a persistent vegetative state.  Further, it should be noted whether or not you wish to be given pain medication even though it may dull consciousness and indirectly shorten your life.

Although a Personal Directive generally contains language that your Agent must make any decisions based upon their knowledge of your wishes, beliefs and values, as much information as possible ought to be included in the Personal Directive to avoid any uncertainty in the future.

Just as changing your beneficiaries requires drafting of a new Will, should  your wishes as written in a Personal Directive or Enduring Power of Attorney change, so too should these documents. As with a Will, "sooner rather than later" are words to live by (pun intended), as any number of circumstances could lead to a loss of capacity, and hence, loss of the ability to put your wishes in writing and potentially avoid issues such as those noted above.