Separated? Why you need to review your Will

Scanlan Carroll Lawyers, Carol Pagès

If you have recently separated, your focus will likely be on what to do about the property you have with your ex partner, and arrangements for your children.
So why do you need to think about your Will?

If you have a Will, it may be that each of you and your ex partner have left everything to each other, and then to your children.

If you are separated, it is important to take the time to review all of your estate planning documents – this includes your Will, your Powers of Attorney, and your Binding Death Benefit Nomination of your superannuation fund.

Each of these documents is explained below:
Your Will – your Will sets out how you would like your assets distributed when you die and who is responsible for carrying out your wishes. You can also include clauses such as your nominated guardian for children under 18, and specific gifts that you would like to make. In your Will you specify who will be your executor. Your executor stands in your shoes when you die, and they will carry out your wishes by calling in your assets and distributing same to your chosen beneficiaries.

Enduring Power of Attorney
– While you are alive, your attorney is able to stand in your shoes and carry out financial transactions on your behalf using the power – this can be buying or selling property on your behalf if you are away on holidays, transacting on your bank account paying your bills for you, and so on. Your nominated attorney can also make personal care decisions for you – such as choosing a care facility if you are unable to look after yourself, or limiting or restricting a person from visiting you if they consider this is not in your interests.
A separate medical decision maker (which can be the same person) will be able to make medical decisions on your behalf, such as consenting to surgery if you are unable to. As the powers are enduring, they continue even if you later suffer an illness or injury which means you are unable to make decisions for yourself.

Binding Death Benefit Nomination (BDBN)
– many people have significant balances in superannuation and also life insurance policies attached to their funds. As part of your estate planning process, we provide you with advice about your BDBN as superannuation is generally considered to be ‘outside’ of your estate and what is covered by your Will. It is important that this valuable asset is passed on to your loved ones in the way that you intended.

Why is this important?
Separation does not trigger the end of your existing Will, Powers of Attorney or BDBN. Many people are surprised to learn that divorce does not invalidate your Will. Divorce revokes a gift to your former spouse or appointment as your executor, and remarriage can invalidate your Will save for references made to your current spouse.

What if I don’t have a Will?
If you don’t have a Will, your assets will be passed on to your relatives according to the rules of intestacy. The rules in Victoria are that if you die, your estate goes to:
Your spouse or domestic partner if you have no children;
Your spouse or domestic partner, if you have children with that partner;
If you have children to a previous relationship, your spouse will receive a statutory legacy (currently $480,700), your personal possessions, and 50% of the balance of your estate. Your children will equally share the remaining 50% of your estate.

Case study – who inherits?
Alex separated from Danielle three years ago. They were married however had no children. They were able to resolve their family law property division fairly amicably, and finalized their family law case with Consent Orders dividing their property.
Alex and Danielle prepared their Wills when they were first married 10 years ago, each leaving their estate to the other.
Alex has re-partnered with Mary, and they have been together for 20 months.
Alex and Danielle haven’t yet filed for divorce as they have not gotten around to it yet. Alex has the forms on the kitchen table to sign.
Alex tragically dies before signing his divorce form.
Who do Alex’s assets go to………..?
Depending on a number of factors – it’s Danielle – his former wife.
The gifts to Danielle in Alex’s Will are not revoked as they are not divorced.
If Alex owned property such as a house with Mary, and the house was in joint names – the house would be outside of Alex’s estate and pass straight to Mary.
What if Alex didn’t have a Will?
Based on the length of the relationship with Mary (along with several other factors which would need to be taken into account under the Family Law Act 1975 (Cth)), Mary is not likely to be considered a spouse.
Danielle is still Alex’s legal spouse, as they are not divorced, so Danielle receives Alex’s estate.

Summary
Mary may have grounds to make a claim in either scenario, but this can be a long and expensive legal process which no one wants to go through after the loss of a loved one.
The above example shows that how an asset passes on after death can depend on a number of factors. To ensure that your wishes are as you intended, it is important to obtain advice in relation to your family law and estate planning matters.
This is important at separation, and the time following separation – for example, when you re-partner, it is worth considering the impact of your new relationship and property ownership upon your children, and your new partner.

Incapacity: Choose Who Makes Decisions for You

By Russell Kennedy – Clare Hesbrook and Ilana Kacev

Estate Planning isn’t just about your Will, equally important are the documents in which you choose and who makes decisions for you if you lose capacity during your lifetime.

Choose Who Decides
If you want to choose who makes decisions for you regarding your finances, property, lifestyle and medical treatment, it is essential that you have in place:
• An Enduring Power of Attorney and an Appointment of Medical Treatment Decision Maker (if you live in Victoria); or
• An Enduring Power of Attorney and an Appointment of Enduring Guardian (if you live in New South Wales).

Losing capacity
Currently it is estimated that almost half a million Australians are living with Dementia and these numbers are expected to continue to rise. Aside from Dementia, there are many other reasons why you may lose capacity to make decisions for yourself.

Public Trustee & Guardian appointments
On 14 March 2022, Four Corners aired an episode investigating the difficulties encountered by those who did not have these documents in place, at a time when they were deemed to have lost capacity. The Public Trustee & Guardian were appointed to take control of their finances and make decisions about their lifestyle, including where they lived.
The Four Corners episode highlights the importance of proactive estate planning and especially, making arrangements in the event of your future incapacity.

What it means when you have a Power of Attorney and Appointment of Enduring Guardian/Medical Treatment Decision Maker in place:
1. You decide who makes decisions about your money and lifestyle. You can choose the people who care about you and respect your values.
2. You decide how your chosen attorneys and guardians act and when their powers come into effect. You can provide directions about how they should act in end of life care decisions for example.
3. You preserve your wealth. A public trustee and guardian takes payment for their services from your assets. When you choose your own attorney and guardian (unless you choose to appoint a professional attorney) you do not generally pay for acting.

Taking positive action to put your estate planning affairs in order means that you get to decide who makes decisions over your life, rather than having it decided for you.

FIRST NATIONAL STUDY FINDS MORE ELDER ABUSE

In the year prior to the first national survey conducted into elder abuse, one in six older Australians reported they had experienced abuse most often committed by family members.

The National Elder Abuse Prevalence Study (NEAPS) survey, carried out between February and May 2020, showed that the most common subtype was psychological abuse (12%), followed by neglect (3%), financial abuse (2%), physical abuse (2%) and sexual abuse (1%). Some of the 7,000 participants aged over 65 years reported several types of abuse occurring, usually psychological abuse and neglect.

Types of elder abuse

Nearly one in five elder abuse perpetrators are children (18%), or their partners or grandchildren and about one in 10 elder abuse perpetrators are intimate partners. Children (most often, sons) are most likely to perpetrate financial abuse as well as friends and service providers.

Children are also the largest group of perpetrators of psychological and physical abuse while friends, acquaintances and spouses were most likely to perpetrate sexual abuse.
Children and intimate partners are both significant perpetrator groups (24-25% for each) of neglect. Professional carers (14%) and service providers (13%) are bigger perpetrator groups for neglect than for other abuse subtypes.

Psychological abuse is not always recognized by either victims or perpetrators. It includes insulting, belittling or threatening behaviour towards a person. Family and friends are the best protection for a person experiencing abuse rather than the person who is unlikely to directly confront the perpetrator.

Factors that increase risk of abuse

While women were slightly more likely to be the subject of abuse than men, other factors increased the risk of experiencing abuse, namely, being poorer, being single, separated or divorced and living in rented housing or owning a house with a debt against it. Having poor physical or psychological health also increased the risk of experiencing abuse.

The study did not include people living in aged care or suffering cognitive decline which could increase the identified prevalence of elder abuse in the community.
The federal government has announced additional funding to build on the National Plan to Respond to the Abuse of Older People. This announcement follows on from recommendations made by the Aged Care Quality and Safety Commission to increase funding to home care packages and create new training places for aged care staff.

AIFS, National Elder Abuse Prevalence Study, https://aifs.gov.au/publications/national-elder-abuse-prevalence-study

LEAN IN AND LISTEN!

Welcome to the Baby Boomers Guide to Life in the 21st Century!

Produced by Jeffrey Furolo and hosted by Lex Marinos and Patricia ‘Little Pattie’ Amphlett, the Baby Boomers Guide is a radio series that can be heard on community radio station, Radio Skid Row.

The team has completed two seasons of radio programs, and most recently, a 34 session season of topics aimed at listeners over 55 years. Topics covered include: Health Services & Ageing in Australia; Sexuality, Relationships & Ageing; and The Brain & Ageing.

Based on my legal experience, I chatted with Patricia in the Two Cents Worth segment on three important topics:

Wills and inheritances: https://babyboomersguide.com.au/episode/s2-e1-ageism-discrimination-stigma/
Divorce & separation in later life: https://babyboomersguide.com.au/episode/s2-e5-intergenerationality-ageing/
Powers of an attorney: https://babyboomersguide.com.au/episode/technology-ageing-in-australia/

The series began with an interview with Australia’s first Age Discrimination Commissioner, the late Susan Ryan. Other notable speakers include former NSW Legislative Council MP Meredith Burgmann; and Deputy Commissioner of the ACCC, Delia Rickard.

Podcasts of the programs are available on the Baby Boomers Guide to the 21st Century website at https://babyboomersguide.com.au/episode/technology-ageing-in-australia/.

Season 2 is proudly supported by Older Women’s Network NSW and Ecstra Foundation.

Retirement village exit rules changed

New legislation means that NSW retirement village contracts will now include a timeframe that ensures timely payments for a former resident’s exit entitlements.

These changes apply only to registered interest holders with a long-term registered lease that gives them at least 50% of any capital gain.

They do not apply to:
• registered interest holders who own a lot in a strata or community scheme village or own shares in a company title or trust village that gives them their resident right; or
• unregistered interest holders.

New retirement village laws started in January 2021. The changes reflect complaints made about how exit entitlements were previously managed and provide a timeframe for former residents to receive their exit entitlements. Summarised, the changes:
• enable residents to receive exit entitlement money before their unit sells (if the sale has been ‘unreasonably delayed’);
• provide an option for residents to fund their move into aged care by accessing part of their estimated exit entitlement money;
• ensure residents no longer have to pay ongoing charges for general services for more than 42 days after they leave the retirement village (commences on 1 July 2021 onwards).

New legislation has been introduced which affects existing and all new retirement village contracts. Previously registered interest holders had to wait until a new resident either moved into or leased their old unit before they were able to receive their share of the sale proceeds (the “exit entitlements”). This could mean that if the village operator delayed the sale of a unit after the resident left, the former might not receive their exit entitlements for anywhere between two and five years.

Under the new legislation, a registered interest holder can apply to the Secretary of the Department of Finance, Services and Innovation for an exit entitlement order directing the village operator to pay the exit entitlements to the former resident even though the unit has not sold. The order can require payment after six months for Sydney metropolitan, Wollongong and Blue Mountains residences and within one year anywhere else in NSW. This order will only be made if the village operator has “unreasonably delayed” the sale considering the time taken to refurbish the unit and whether the operator as selling agent has performed all their duties within reasonable time.

Such an application can only be made by a former resident but not their estate. If the order is made, the exit entitlement must be paid with 30 days of the order.

If the registered interest holder moves out of the retirement village into a residential aged care facility and has not received their exit entitlement, the resident may ask that the operator make one or more daily accommodation payments to the facility on behalf of the resident within 28 days of the resident’s request. As more than 60% of residents move directly into aged care, their move can be delayed if they do not have access to funds to pay the daily accommodation payments to the facility and the unit does not sell quickly. These amendments are intended to make the transfer easier for residents and family members.

For more detail, see Fair Trading website, https://www.fairtrading.nsw.gov.au/about-fair-trading/legislation-and-publications/changes-to-legislation/changes-to-retirement-village-laws

Author talk at Dennis Johnson Library Stanhope Gardens

Come along to join in the retirement conversation on

Join Alice and have a retirement conversation.
Saturday, 24 October 2020 at 1:30 pm – 3:00 pm.
At the Dennis Johnson Library, Cnr Stanhope Parkway & Sentry Drive, Stanhope Gardens, NSW 2768

Women experience retirement differently to men. Women generally live longer, have less money and volunteer more than their male counterparts. A practicing lawyer for over 30 years, Alice Mantel encourages making better decisions, giving advice on topics such as:

Inspiring women to make the most of their retirement opportunities, Every Woman’s Guide to Retirement encourages an active, connected lifestyle, staying healthy, lifelong learning, de-cluttering, and even online dating to make the most of this time.

Six minutes interview

This story appeared in the March 2020 issue of the NSW Law Society Journal:

BY AMY DALE – FEB 27, 2020

Alice Mantel is an experienced lawyer and adviser on the challenges that many women encounter during retirement. She talks about family law, homelessness, and why just planning one big overseas trip won’t cut it for the final third of your life.

What experiences as a lawyer shaped your decision to advise on planning for retirement?
I spent around 10 years practising family and then elder law. In family law particularly, I was surprised and then concerned about how little many of my clients knew about their own personal financial circumstances. Often, they did not know if their name was on the title of the property, or how much was owed on the mortgage or credit cards. Again, when acting for older clients, often they left making their wills or power of attorney until very late, when there was pressure from their children, which, as you can appreciate, is a very difficult situation for any lawyer. It brought home to me that women need to be prepared much sooner for the unexpected.

What inspired you to write your book, Every Woman’s Guide to Retirement?
I started writing this book before I retired. I was initially doing research to answer my own questions. Years ago, when placing my mother into a nursing home, I realised how difficult it was to find any sensible information to assist me. More recently, I wanted some guidance when I was thinking about closing my practice. After a while, I decided that most books or articles did not seem very relevant to me. They were often very friendly but aimed at chaps who were fairly well off or aimed at women who presumably intended to spend the last third of their life on continual holidays. My research gradually grew into a book that is far more extensive than I had ever contemplated and includes mundane topics like accessing your pension as well as more interesting options such as lifelong learning or starting a new relationship.

What issues specifically apply to women? Bulk of carer responsibilities, less superannuation, longer life span?
I see retirement as very different for women than men. Generally, women are the main carers for their parents, children, partners and grandchildren. At the same time, they come into retirement with significantly less financial resources but live on average five years longer. If they do not have enough resources, those last years are going to be close to living in poverty. It can be a very grim prospect if a woman’s health begins to suffer and there is not always the certainty that your children will be there to look after you.

Women aged 55 and above are the fastest-growing cohort at risk of homelessness. How can we do more to ensure financial security?
It is no surprise to me that older women are at risk of homelessness. It can begin if they lose their home in a divorce settlement and cannot recover financially, but also if they are unable to find work and remain unemployed, either as a result of their own or their children’s health issues. When super funds talk about having a modest retirement, or a comfortable retirement, there is always an unspoken assumption that the retiree owns their own home. That’s ridiculous and increasingly unlikely as recent figures have demonstrated. We need to make a secure home a realistic possibility for everyone.

What about social planning for retirement? How can people prepare themselves to leave the workforce and feel at ease that a happy and fulfilling future is still ahead of them?
Most women retiring today can expect to have another 20 years of relatively good health, so it simply isn’t enough to plan your one big overseas trip and think that’s all there is to it. For working women, one of the major issues around retirement is the loss of their work identity, the loss of income and the social connectedness that professional life brings. We need to plan at least a year ahead of retirement about how we can use our skills and experience in the non-employment sphere – and let me assure you, that is a very large sphere. There are so many not-for-profit agencies looking for directors on their boards or volunteers for their operations. Not having to follow a work routine means you can finally pursue your real passion – whether it is art, woodwork, or caring for your grandkids and even if it might take a little time to find what that is, it will give real meaning to the legacy you leave.