Continue reading »]]> With the advent of an aging baby boomer population and a better general understanding of the need to have your affairs in order, many of us will be asked to be an Attorney for parents, other family members or friends.

An Enduring Power of Attorney gives someone else the power to make personal or financial decisions on your behalf. It is an onerous responsibility and one which you, as an Attorney must not take lightly. The Powers or Attorney Act sets out the responsibilities of an Attorney and as an Attorney you must familiarise yourself with the obligations you are taking on – they include common sense things like acting honestly and with care, keeping matters confidential, always acting in the best interests of the donor, keeping good records, keeping your property separate from the donor and not entering into transactions where your interest’s conflict with those of the donor.

If you are not sure about your obligations, get professional advice from an appropriate source, which may include a lawyer, accountant or financial planner. Avoid making a poor and uninformed decision on behalf of your donor – which could have been avoided with the right advice. This may end up making you personally liable.

If you need assistance with understanding your obligations as an Attorney and properly discharging those obligations, please call Christine Matsinger at McColm Matsinger Lawyers on 5443 1800 for advice.

Continue reading »]]> An Attorney is someone you appoint to make personal and/or financial decisions on your behalf if you lose capacity or are overseas and not available to manage your affairs.

Being an Attorney is an onerous responsibility.  Your attorney has the same legal power regarding your affairs as you, the donor of the Enduring Power of Attorney – So be very careful who you choose – It must be someone you trust absolutely to ensure your needs and wishes are met and someone who has the necessary ability to properly manage your affairs.  Note for personal and health care matters the Power of Attorney will only begin when you lose capacity – that can be properly determined by a doctor if need be. For Financial matters the Power of Attorney will begin when you want it to – as per the Enduring Power of Attorney form.

You can have more than one attorney.  You can have separate attorneys for personal/healthcare matters and financial matters.  You will need to decide how you want your attorneys to make their decisions, jointly, on their own or by majority.  Your attorneys must be over 18 and not be your paid carers.

If there is no-one suitable to appoint you can consider the Adult Guardian, who is an Independent Statutory Officer.

You can end an Enduring Power of Attorney at any time provided you have the capacity to do so.  If your Attorney acts improperly, you can revoke the Enduring Power of Attorney.

If you need help with an Enduring Power of Attorney, contact Christine Matsinger at McColm Matsinger Lawyers on 07 5443 1800 or you can email us.

Christine Matsinger
McColm Matsinger Lawyers

Continue reading »]]> Many of us will be asked to be an executor of a family member or close friend’s Will.

This is often a time consuming and complex role. Even the simplest of estates take time and effort to administer – nothing is ever simple any more.

If you need help with estate administration or obtaining a Grant of Probate or a Grant of Letters of Administration (where someone dies without a Will) then we can assist. Where an account is held in a deceased sole name, most financial institutions (eg: banks, building societies, share registries, managed funds) and aged care facility operators etc require a Grant of Probate before they will release funds.

We can walk you through the process that is required to be followed and assist you to carry out your duties as an Executor, so that you can effectively and efficiently fulfil the role that the Will maker bestowed upon you – to make sure (as far as you can) that the Will maker’s wishes regarding the distribution of the proceeds’ of their life’s work are carried out.

If you need help with your role as an Executor, Please call Christine Matsinger at McColm Matsinger Lawyers on 07 5443 1800.

Christine Matsinger
McColm Matsinger Lawyers

Continue reading »]]> A recent New South Wales decision in November 2012 emphasises the need to regularly review your Will.

In that case the Will maker had left one half of his estate to “Save the Children” a charity which had been deregistered since the Will had been made.  The Court had to decide whether another similarly named charity should receive the gift or whether the gift would fail and would pass to the Will maker’s Aunt who herself had also since died.

A regular review of the deceased’s Will would have avoided not only the risk of half the estate being paid in a different manner than was intended, but also the expensive costs of an application to the New South Wales Supreme Court to provide directions to the Executors.

Look at your existing Will now and check that it meets your desires.  If not contact Malcolm McColm at McColm Matsinger Lawyers while you still have time.

Malcolm McColm
McColm Matsinger Lawyers

Continue reading »]]> The “Succession Act” provides that a Beneficiary named in a Will must survive the Testator for a period of 30 days. This Rule can be excluded in your Will however typically, it is not – because it provides a protection against rapid double succession which can defeat the original Testator’s wishes.

Beneficiaries who die without surviving for 30 days are simply treated as if they were never mentioned in the Will. Any bequest that was left to them will fall into the residue of the Estate to be divided amongst the surviving named Beneficiaries.

The Testator has the right to nominate the age or event when the Beneficiaries shall become entitled to inherit. You must therefore survive until that age or event specified in the Will if you wish to inherit. If no age of inheritance is specified, then beneficiaries need to attain the age of majority (18 years) to inherit.

If you need estate planning advice contact Malcolm McColm at McColm Matsinger Lawyers.

Malcolm McColm
McColm Matsinger Lawyers

Continue reading »]]> Executors are the persons who you appoint in your Will to be the financial administrators of your Estate. Their role is to instruct solicitors and other consultants (accountants and financial advisors) to do the necessary work to gather in the assets, pay the bills and distribute your Estate in accordance with the terms of your Will.

The primary criteria is therefore to choose an Executor who you think will make the sort of decisions that you would make regarding the administration of your Estate and completion of the terms of your Will. They may be members of your family, friends or professional persons.

It is prudent to nominate at least 2 persons to fill the role of your Executor. They may act or you may appoint them successively.

The persons you appoint has an election to make at the time of your death as to whether they shall take up that appointment or not. It is therefore essential that you check with the persons that you are intending to appoint as Executor under your Will and ensure that they are agreeable to acting in this role.  If you need assistance with estate planning contact McColm Matsinger Lawyers.

Malcolm McColm
McColm Matsinger Lawyers

Continue reading »]]> A recent article by Leisa Scott in the Sunday Mail Queensland Weekend Magazine highlighted some very sad stories of Elder Abuse. To encapsulate this increasing phenomenon and because I cannot express it any better than this. I will directly quote from that Article –

“it’s Elder Abuse, and it’s growing – it’s ugly and harsh and incredibly real and as hidden as domestic violence was 30 years ago. It festers in some part of human nature, a venal element more likely to rear its head when affluence and longevity collide. The typical abuser? Adult children and increasingly, grandchildren. It takes many forms, – neglect, enforced isolation and physical, emotional and verbal abuse – and knows no social boundaries. Lawyers, social workers and bureaucrats agree there is almost always one commonality –greed – rich, poor, it doesn’t matter.”

Perhaps you are aware of an elderly person suffering this form of abuse.  There are agencies that can assist and provide advice on a confidential basis

• Seniors Legal and Support Services (SLASS) who have offices in Brisbane, Cairns, Hervey Bay, Toowoomba and Townsville. Visit www.communities.qld.gov.au or phone (07) 3214 6333 (Brisbane Office)
• Elders Abuse Prevention Unit Helpline. Visit www.eapu.com.au or phone 1300 651 192
• Adult Guardian. www.justice.qld.gov.au or phone 1300 653 187
• QCAT (Queensland Civil and Administrative Tribunal) www.qcat.qld.gov.au or phone 1300 753 228
• Aged Care Assessment Team (ACAT) – Consult your local phone book under the Age page to obtain as assessment regarding capacity.
• Seniors Enquiry Line. www.seniorsenquiryline.com.au or phone 1300 135 500
• Qld Aged & Disability Advocacy www.qada.org.au or phone 1800 818 338
• Lifeline – phone: 13 11 14

If you need help with any aspect of Elder Law contact Christine Matsinger at McColm Matsinger Lawyers on 5443 1800 or visit our website specifically dedicated to Wills Estates and Elder Law.

Christine Matsinger
McColm Matsinger Lawyers

Continue reading »]]> Circumstances can occur where it is difficult for a Testator to give effect to their wishes in their Will without raising the possibility of a claim being made against their Estate.  Such claims can be very expensive and because all parties’ costs are often awarded against the Estate, modest inheritances can be decimated in the process.

An experienced legal Will maker will have a number of options available that may assist the client to achieve their wishes without exposing the risk of a claim to the Estate.

In certain circumstances, Binding Death Benefit Nominations may provide an answer by ensuring that superannuation benefits flow directly to the intended dependant recipients without passing through the Estate.  This may protect those assets from such Estate claims.

Contact McColm Matsinger Lawyers to discuss the full range of options that may be available to you.

Malcolm McColm
McColm Matsinger Lawyers

Continue reading »]]> Yes you can, under certain circumstances and this can have desirable taxation consequences. This is because, under the existing legislation, if a death benefit pension is paid, it continues to have the same taxation status as the Deceased’s pension account. If the SMSF is deemed as being in “pension phase”, the Fund pays no tax on earnings, interest income or CGT and there is no tax payable on the pension payments paid.

It is however essential that your Binding Death Benefit Nomination must prescribe that the benefit will be paid in the form of a pension in order that the pension will be deemed as automatically continuing as entitled.

It is important therefore that you obtain excellent legal and taxation advice when making a Binding Death Benefit Nomination. Contact Malcolm McColm from McColm Matsinger Lawyers if you need assistance with a Binding Death Benefit Nomination.

Malcolm McColm
McColm Matsinger Lawyers

Continue reading »]]> There are formal requirements for a Binding Death Benefit Nomination to be valid.  It must:

1.   Be in writing;

2.   Nominate dependants or a legal personal representative of the Deceased Member (the definition of “dependants” is a technical one);

3.   State the proportion of the death benefit payable to each nominated beneficiary;

4.   Be signed and dated by the Member in the presence of 2 witnesses who are adults and neither of whom are nominated to receive  benefits;

5.   Be updated every 3 years.

As a Binding Death Benefit Nomination is in the nature of a Will, there are technical requirements that must be met in order for that document to be valid.  It is unwise to prepare a DIY Binding Death Benefit Nomination.

If you need assistance with preparing a Binding Death Benefit Nomination contact McColm Matsinger Lawyers.

Malcolm McColm
McColm Matsinger Lawyers