The Paperwork: Power of Attorney, Wills and Estates | Marie Brownell | Club Sandwich
A will is only useful when you're dead, but the rest of the paperwork is critical long before that. This week's guest lives and breathes it for a living.
Marie Brownell, Director of Estate Planning and Administration at NSW Trustee and Guardian, joins Sarah Macdonald to explain what a power of attorney, an enduring power of attorney, an enduring guardianship and a will each actually do, who needs one, and why doing them together in one sitting makes life easier later.
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In this episode:
This Week's Hack: Getting a will, power of attorney and enduring guardianship done properly doesn't have to cost much, a few hundred dollars through a public trustee, and it's free if your mum or dad is on a full pension. Do all three documents together in one sitting if you can.
Send this to: whoever in your family keeps meaning to "get around to" their will, and anyone who's ever been an executor and found out how messy it can get.
A moment that stays: mid-recording, Sarah realised live on air that she isn't sure her own mum's paperwork is complete, she thinks she has power of attorney but not enduring guardianship. Marie's reply: "you need the whole shebang."
Meet the regular Clubbers:
Melissa Reader — CEO of Vera and expert on Australia's ageing crisis.
Jo Lamble — Clinical psychologist specialising in guilt and family dynamics.
Dr Ginni Mansberg — GP and women's health advocate.
Dr Stephanie Ward — Geriatrician helping you understand the ageing brain.
Kerry Milligan — Gogglebox star bringing humour and honesty.
About Marie Brownell: Director of Estate Planning and Administration at NSW Trustee and Guardian, specialising in wills, powers of attorney and enduring guardianship.
Put The Kettle On, Vera's free conversation guide: the five questions worth asking your ageing mum or dad, at putthekettleon.com.au.
Our FACES campaign: Last year, 4,812 older Australians died waiting for the aged care they'd already been approved for, about 13 a day. Vera started FACES to count the people waiting, and count the ones we lose, every quarter, published. If you're sitting in that wait with your mum or dad right now, add your name at vera.guide/faces.
This episode was supported by Australian Unity, home health and care services: australianunity.com.au/clubsandwich.
With thanks to NSW Trustee and Guardian. Search NSW Trustee and Guardian, or call 1300 10 20 30.
Vera is your candid companion as you care for an ageing parent. Have a look at https://vera.guide.
Credits:
Sarah Macdonald – Host + Executive Producer
Melissa Reader – Commissioning Editor, Executive Producer + Clubber
Justin McArthur – Executive Producer + Editor, for P. Zinner Podcasts (https://pzinner.com.au)
Thanks and kudos to Sean Wayland for our theme music Club Sandwich — hear more at https://seanwayland.com
See omnystudio.com/listener for privacy information.
Transcript
Club Sandwich is recorded on Gadigal Land, home of the EORA Nation. We pay our respects to elders past and present. Always was, always will be.
It's. It's a tough gig, you know, I had a friend who, you know, was a lawyer, used to do this stuff all the time and her mum passed away and she was the executor of her mum's estate and she said to me, wow, I didn't realise how painful my siblings are. And I said, why is that? And she said, what? Come to administer Mum's estate and they're really being difficult, like, they are really making life hard for me.
Club Sandwich is brought to you by Australian Unity Home Health and Care, helping Australian families keep their parents well, independent and at home for longer. Visit australianunity.com auclubsandwich Club Sandwich is brought to you by New South Wales Trustee and Guardian. Helping families across New South Wales make a will, plan ahead and protect the people they love. Search New South Wales Trustee and Guardian or call 1300-10-2030. Welcome to Club Sandwich. Now, this is the podcast for you. If you have enough trouble doing your own paperwork and bureaucracy and now you may have to do it for a parent and possibly for a child as well. My name is Sarah McDonald. I hate paperwork. I hate bureaucracy. I'm terrible at it. The end of my kitchen table is a mountain of filing of paperwork of things I have to get to and now a lot of it is my mum's. So we thought on the podcast we'd help you get through all of this and some of the things you really need to set up the unavoidable bureaucracy and admin around looking after an ageing parent. This stuff is really important. Now, we talked about some of these on Put the Kettle On. We talked about things such as a power of attorney and enduring power of attorney. So if you listened to that episode and you thought, I don't even know what they are, this is the episode for you today. And if you have one of those things, keep listening because you need to know what you're actually up for. So joining me for this episode is Marie Brownell. Now, she is the Director of Estate Planning and Administration at New South Wales Trustee and Guardian. Welcome to Club Sandwich.
Thank you. Thanks for having me.
So I saw a message from a clubber recently that came into me and it said, people don't realise how important this paperwork stuff is. A will is only useful when you're dead. But the rest of the paperwork in my family has been critical and it's Been a train smash and bloody horrendous. We have a father with dementia and a mother with some big issues, and we ended up at a tribunal because it was such a mess. Do you hear these sort of stories a lot?
Sadly we do. We hear that quite frequently and it's not uncommon because people just haven't got round to putting powers of attorney or guardianship documents in place. And as we get older, we can get sick. Accidents happen. It's not just the elderly that this happens to either. That's another really important point to note. This can happen to anyone at any point in their life. But as you get older that, you know, the. The opportunity for that to happen obviously increases. So without having those documents in place, people don't know who's going to step in and make those really important decisions for you without that document there to appoint someone.
Yeah, it is. It's sort of that stuff. I'll deal with that later. I'll deal with that later, you know, and then later it never comes. But if I. If I put my head in the sand, maybe I'll never need them and
maybe you won't, but chances you might. And if you do need them and you don't have them, that's when the train wreck happens.
We've done a will. We did. I don't. God knows where it is, but we have done it.
That's another worry. I know.
Hopeless. I said that. I said that to you. So is there a particular order should you do the will first and then the others, depending on how old you are?
I think you should do them all together at once.
Okay.
I think that's the best way to do it. The reason why it's the best way to do it is you're in the right frame of mind. You're already thinking about these things. You've already documented things. You know, your assets, your liabilities, you've thought about your family circumstances. You've thought about who's in your life and who's not in your life. And at that point, it's easy to make that transition from thinking about incapacity to then thinking about passing away. And doing it all together honestly is just easier. But never fear, if you haven't done them, or if you've only done one and not the other, there's no reason why you can't do them at any point in time. Yeah, it's just easier doing them all at once. All at once.
Well, I think maybe the will was our gateway drug, but we need to. We need to do the Rest somewhere. Yeah, they have to. Yeah. But you don't need to be old, basically, as you said, start doing this stuff in midlife. So. So if you're going through it with your parents, maybe you should be also doing it for yourself.
Absolutely. And I can't stress this enough, when you're young, you think you're invincible. You think, nothing's going to happen to me. I'm healthy. Things are going really well. But it doesn't always pan out that way. Young people have accidents, young people get sick. You know, you can't just think that that's only for the elderly. So if you are planning this for your folks, you. You should also be thinking about yourself and whether you've got those things in place. Cause if you haven't, this is the right time to do it.
Yeah, no, I know. I think a lot of people in Sam's generation go, my God, if something happens to me, you're all stuffed. And especially when they haven't got their kind of act together on this. All right, let's go through some of it. I want to start with the power of attorney. Because if people have an elderly parent, this one often comes up first, I think. So, Marie, what is a power of attorney? A poa, and why don't we get a medal saying we are poa, Our parents?
The poa? The power of attorney is actually a really powerful, important document. It is the document that governs who's going to make financial decisions for you if you don't have capacity to do that yourself. And it is about buying and selling real estate. It's about transacting on your bank accounts. It's about paying your utilities. It's all the things that you do every single day in relation to your finances. That other person is going to step into your shoes and do those things for you.
But they can do it alongside you, too, can't they?
Can do it alongside you. So while you have capacity. So some people will put a power of attorney in place, and they might think, well, look, I'm actually fine. I have capacity. I just need a bit of help. That's fine, too. So you can actually work in conjunction with your attorney. Now, if that happens, your attorney must act on your instruction. So you can't, as the attorney, just think, oh, I won't do what she says. I'll go and do something a bit different. You can't do that. As long as the person has capacity, you have to act on the instruction that you've been given.
So doing your parents online banking for Instance, because they can't operate the app, they can say, you know, put $100 over to the gardener or something.
You can do that as long as they've told you, we would like for you to pay, you know, gardener, 100 bucks, that's fine. You can do that on. On their behalf.
Okay. And so is this different in different parts of Australia?
It is and it isn't. So the framework's the same. So the effect of the document is the same. But frustratingly, it's the. The name of. It's different in every jurisdiction.
Oh, for God's sake.
The document is different in every jurisdiction. So, for example, in New South Wales, a power of attorney is a standalone document. It's the document that deals with financial affairs. In other jurisdictions, such as Queensland or Victoria, the one document also covers, you know, lifestyle and health decisions as well as financial decisions. So you have the same effect. Different document. And the form's very different. The signing and witnessing requirements are very different. So you do need to be really familiar with what it looks like in your jurisdiction. Recently, the Australian Guardianship and Administration Council published a little booklet. It's called you decide who decides. And that little booklet spells out exactly what it looks like in every jurisdiction across Australia. So you can go to that, and it'll tell you how you can make a document in that jurisdiction, and it'll give you some resources that you can go and have a look at and guide you in the right direction about where to do it. And it'll. What the witnessing requirements are.
Yeah, right. So you might need a Justice of the peace or someone to witness it. And, yeah, I've got Pat up the road as our justice of the peace, our old neighbour. So everyone needs one in their life. Cause sometimes you need that kind of stuff, too.
But, you know, for example, in Queensland, the Justice of the Peace can witness the document, but not in New South Wales.
Oh, gosh, okay. Pat, you're out of duty when we do that one. Right. So that is really important, especially if you're getting older and you're worried that you might not be able to manage things, or if people are getting dementia, that kind of thing. Really important. Or if they might have an accident or be in hospital. That kind. Is that what it covers?
Yeah, it can. So it can cover temporary things. So it can be, you know, a stint in hospital that you think, well, you know, I won't be available. I'm in rehab. I've had a knee reconstruction, for example. I'm thinking about that because that happened to my Mother. So, you know, out of action for a few months and obviously the bills still needed to be paid.
So you were paying her bills and things like that?
Yes, so we're paying the bills, making sure that all those things were taken care of and, you know, obviously keeping her up to date with what we were doing and how we were doing it for her. But that's a really good example of a temporary time where she was physically incapacitated, not mentally. She was perfectly fine in terms of her mental ability, but just physically wasn't able to get around.
Okay, so it's mostly around finances, but depends on and look at where your state you are. I had another club sandwich listener message me, let's call her Lisa. And she said, the family dynamics in our family, very messy. My mum's got her paper sorted. That's great. But then she barked at us all to sign them without realising we have to give consent and understand the ins and outs of it all. And the upshot is, I don't want to do it. I don't want to be a power of attorney or a guardian, which we'll talk about in just a moment. Can you refuse?
Yes, you can. It's best to do it when the person that has asked you to do it has got capacity, otherwise you'll have to go to the guardianship tribunal and have a financial management order made. So if you don't want to do it, you need to have those conversations straight away. So while the.
Before they've appointed you.
Before they've appointed you. Hang on a minute, Mum, don't do it. I don't want to be appointed. Or if they say, I've made the power of attorney, can you please sign your acceptance? If you don't want to do it, do not sign the acceptance. You'll need to say, I'm sorry, this is not something I want to do for you. I'm not comfortable have that conversation. Look, I know it can be difficult to have a conversation, particularly with a parent that really wants you to do something. And you might want to explain why that that's that you're not comfortable in having that appointment made. But you need to be honest and you need to have these conversations. It's going to be far worse if you just sign it and this thing comes into effect and then down the track you think, oh, you know what, this is really not working, or I really don't want to do it. That's when more problems.
It's hard to get out of it.
It's hard to get out of it. You can't backtrack without going to the tribunal.
Oh, gosh. Okay. And they can be. They can be very helpful. Right, can't they? I mean, it is a. It's quite a big responsibility, though, isn't it? So your parent really has to appoint someone they absolutely trust. They're going to be managing their money 100%.
In fact, I say it's 110%. So you got to. You've got to have no shadow of a doubt. So whoever you're appointing, you've honest. You've got to be really honest with yourself.
Yeah.
You've got to think, do I have no doubt that this person is going to do what I ask them to do?
Are they honest?
Are they honest? Are they trustworthy? Are they going to respect my wishes, my choices? Are they going to make decisions in my best interests? Even though it might not be in their best interests in terms of depleting the estate that's going to fall into the will when I pass away. A good example of that is some people might say, look, I really. I really want to be at home. I want home care to, you know, to come to me and I don't want to be put in a nursing home. The cost of that might be more than going into a nursing home sometimes. Some kids might think that's going to be really expensive and that means there's less for us when the estate falls in. We won't do that. We'll just put Mum in the nursing home. So these are the sorts.
I'm sorry, their money.
Their money, Their decision. Their decision. So you need to be really comfortable that they're not comfortable actually their wishes. You need to be 100% sure they're
going to do that. I will obey your wishes. That is your command. Your wish is my command. Although if there's dementia on board, that can be really tricky.
It can be. And obviously every situation is different and we might have these grand ideas about what we would like as we age and, you know, depending on what the circumstances are. There is an element of realism here too, and you do need to be pragmatic about what the circumstances are at the time. It might not be possible to do that, but if the motivation is purely from a financial perspective and not from what's in the best interests of my mum, then that's where. That's where that conflict lies.
And hopefully you can be investigated and busted if you're not doing right by them.
It's actually really difficult to get a remedy at law.
Yeah, right. Well, there's a lot of work being done in elder abuse, but I want to get onto the enduring power of attorney, because this is different. And what does it mean when the word enduring is added?
So the enduring part means that it will continue to remain in effect if you lose capacity. So, for example, if I was diagnosed with dementia today, I'm still fine. I can still make decisions. I've still got the capacity to make a power of attorney. So I might make an enduring power of attorney, and I might appoint my daughter, for example, as my attorney. And I might say to her, look, I'd like for you to help me because there'll be a period of time where I might. My capacity might start to decline. But when I get to the point that I really don't have any more capacity, she will just fully step in. And because it's enduring, it means that that power of attorney will continue to remain in effect until I pass away,
as opposed to the other power of attorney, which is just about money. This is about more than money, too. And it can go.
So for in New South Wales, the enduring power of attorney is only about money.
Oh, it is only about money.
Yeah. The enduring power.
It endures.
It endures. The appointment endures. That's right.
Okay, Right. So it's not just for a fixed period. It keeps going when you don't have capacity.
Right.
Okay. So that's why it's a big. You've got to be there for the long haul. You can't be about to go and move to Italy like I'd like to.
Yeah, if you've got to be here. Yeah, you've got to be here. You got to be ready, willing and able. Like, you can't. It's a commitment, you know, it is a commitment. So you really, you are. When you accept that power of attorney, you're making a commitment to the person who's appointing you. Yes, I will do the job. I will. I will do it properly. I will keep your money separate from my money. I will act in your best interests. And, you know, I won't do anything that is fraudulent or it somehow disadvantages you financially.
Yeah, no, I mean, I'm a power of attorney and I take that very, very seriously. And you can have joint ones as well. You can have two siblings, can't you? Is that. Do people do that? So they're checking that they're not going to, you know, like it's a double safeguard, perhaps?
Yes, it can be. So you can have a joint appointment and a check and balance. You Know, you like to think at least one of them would say, hold on a minute, that's probably not a good thing to do. Like, look, with everything that you do, there are pros and cons. Having a joint appointment definitely has that check and balance. The thing that you need to think about is if it's joint, they must make decisions together.
Right.
So if there's a stalemate or a dispute that can't be resolved, then that could cause problems. So don't appoint two people that are not going to get along. So be realistic about the relationship these two people have and whether they are going to be able to work together.
I have heard of two powers of attorney that have completely not seen eye to eye. And it's been really messy, really difficult. And one wants to do one thing by the parent and one wants to do the other. Yeah, holy balooky, that's tricky, isn't it?
And then the parents in the middle.
Yeah.
And they're the one that's suffering because these two people can't make up their mind about whatever it is that they're making up.
And I suppose you have to keep that back in mind. I'm doing this for the parent or you. I mean, you can be a power of attorney if you're not a child, can't you? If you're like nephew. Anything. Anything like that. What about things such as decisions about health and lifestyle and if they're going into hospital and all that sort of stuff, what's that covered by?
So in New South Wales, it's an enduring guardianship document.
That's the guardianship. All right, let's move on to the guardianship. So this is a different document to power of attorney and enduring power of
attorney in New South Wales.
In New South Wales, it's called an enduring guardianship. An enduring guardianship. What's it called in other states?
In other states, it's the power of attorney.
Okay, it's the power of attorney.
Just. Just to confuse things, I do honestly recommend people have a look at that little booklet. It really clarifies what it's called in that jurisdiction and what it covers and what it. It doesn't cover.
And we'll put a link to that in our show notes.
Yeah, that'd be great.
So the enduring guardianship, that is where you can say, if you're appointed, that you can make decisions for a parent if they say, have dementia and you think they need to go into an aged care home, Correct?
That's right. So you'll make a decision about what accommodation they should have and where that accommodation is. And the guardian will usually work with the attorney because there's usually a funding element to all this. So how are you going to fund going into, you know, retirement village A or nursing home B? There needs to be some discussion with the attorney to understand what's the affordability and what is it going to cost to look at these various options. But ultimately the guardian decides where they should live and what sort of care
they should receive and how much. Say, perhaps if they're going into hospital, say, and they need surgery. Can you sign for things like that?
Yes, you can. You can make medical and dental treatment consents for that person.
What about end of life care, the aged care directive sort of stuff? Does it overlap with that?
So you have to promote the health and wellbeing of the person that you're acting as guardian for. So you might say in the guardianship document, I've made a medical direction, I would like for you to follow that medical direction. So it's again, reflecting the wishes of the person that you're acting for. And if you're aware of that person's wishes and what they would want to happen at certain points in their life, and if they are at end of life, then you should follow that.
Yeah. Because you know what it is. And hopefully they've written it down in advance Care directive. So it's very, very clear, because if you're going to take these jobs on, you really need to have the conversations like we've had in Put the kettle on. Mum, dad, what do you want?
Correct.
What kind of intervention would you like? Where do you want to live? What would you know what about? And you've got to kind of map out some scenarios with them of perhaps what they'd want. So you're really clear, because that's going to give you the strength and the purpose and the direction when you're upset, perhaps, and things going a bit crazy.
Yeah. And also, if you've got other people saying to you, you know, you should be doing this or you should be doing that, if you've got some clarity, because you've had the conversation, you can easily say, I hear you, but I've spoken to Mum, dad or whoever it is, and they've told me that in these sort of circumstances, this is what they want and I'm here to be their advocate and I'm going to advocate for that thing that they wanted.
I'm worried now. I don't have guardianship and I've just got enduring power of attorney.
Oh, no, you need to have the whole shebang. Go and get that.
It's really worried me now, I'll be honest. After talking about this stuff for years, I found out live on air this week that my own paperwork isn't in order. I think I've got power of attorney for my mum, but not an enduring guardian. So if it can catch me out, it can catch any of us out. I thought I was so on top of it. Australian Unity's Home Health and Care is part of that. Same before you have to thinking the right support in place early so a crisis doesn't force the the decision for you. Visit australianunity.com. This week's guest, Marie Brownell, is New South Wales Trustee and Guardian's own director of estate planning. And she said something worth really writing down. Sorting a will, a power of attorney and an enduring guardian doesn't have to cost a lot. A few hundred bucks free if your mum or dad's on a full pension. It's the cost of avoiding the train smash that she described. Tribunals, fighting between siblings and situations where people trusted to carry out your wishes. Don't do it. Search New South Wales Trustee and Guardian or call 1300 10, 20, 30.
How many older Australians are waiting for the aged care funding they've already been approved for? That they need and they deserve. And how many have died while they've been waiting in that queue? Last year, the number of Deaths was almost 5,000. That is 13 older Australians a day. It's three and a half times the National Road toll. But none of it is published. It is really invisible. So if your family is living this way, there is a special episode in this feed and you can add your name. It'll only take a minute. At Vera Guide faces, join us and be counted.
This is again why we have to have this conversation because it gives us great power in that moment and that and great, I think, comfort if we know what our parents want.
I think comfort's a really good point because it's at that point that you think you're making, you have to make a decision and you're thinking, am I making the right decision? Well, unless you've had the conversation, you're not going to know 100% whether it's that or the other. Having that conversation gives you that comfort. So I have done what they've asked me to do or what they expressed they wanted in these circumstances.
And that's everything. That's everything.
100%. Yeah.
Yeah. I mean, even after death, that's everything. If you know what sort of a funeral they've wanted as well. But I suppose it doesn't cover that after death, does it? Or does it? What happens after death?
Well, that's when the will kicks in.
That's where the will kicks in. Let's go to the will.
Yep.
Okay. The will. So this is another document that has to be drawn up and it basically says, this is what I want to happen to my. What I own after I've died.
Yes. And who you want to act as the executor of the estate. The executor is a really important role. So the executor is the person who takes control of the assets, works out what the liabilities are, makes an application for a grant of probate, identifies and works out who the beneficiaries are, works out the entitlement that everyone's going to receive.
You're freaking me out. I've got to do all this as well one day.
It's a tough gig. You know, I had a friend who, you know, was a lawyer, used to do this stuff all the time, and her mum passed away and she was the executor of her mum's estate. And she said to me, wow, I didn't realise how painful my siblings are. And I said, why is that? And she said, well, I've come to administer Mum's estate. They're really being difficult, like, they are really making life hard for me. And she had a great relationship with her siblings. They got on really, really well. And I think she was able to say to them, hey, listen, hold on, you know, there's stuff I need to do to do the administration. But at points she said to me, these guys are really driving me crazy and I need to create some. Some barriers and, you know, boundaries around what I'm meant to do as the executor and what they want me to do as the executor. And this is someone who was very familiar with being an exec, you know, had, you know, was a lawyer.
Oh, my God. Imagine for the rest of us, then if she already got that. I think that people don't behave well often after death, do they? There's grief and there's loss and there's people behave erratically. So you've got to kind of manage that a little bit if you're the executor, or at least not let it impact on you and do the job. But can you ask a lawyer to help you, like if a lawyer's. And should a lawyer have drawn up the will anyway, in the first place.
Look, I'm a big fan of a professionally drafted will, and the reason why I am a fan of that is because you don't know what you don't know. So sometimes people put off making a will for various reasons, and sometimes those reasons are because they kind of don't know how to tackle things, or they're not quite sure what to do, or they've got this sort of situation going on over here. To be able to go to someone, get some advice and talk through whatever it is that might be holding you back in doing your will is really important and it's so valuable. So for me, getting a professionally drafted document is. I think it's the way to go. I think it's really important. I do acknowledge that there are other platforms available for people. You can do online wills now. There's obviously the old.
And that's better than nothing.
And that's better than. Well, hopefully it's better than nothing. Unless you've really, really, you know, haven't done it properly. But, you know, for that peace of mind, if you get it done properly, it doesn't have to cost a lot of money and it can be done professionally and you can get the advice that you need and.
And they'll know the right questions to ask you or your parent to do the will. That's right, yeah.
They'll ask those tricky questions.
Yes. Because we have input. The kettle on, you know, mum, dad, have you done this? Have you done that? If you've done, you know, have you done a will, it doesn't mean you have to go with them to the lawyer to do the will, because that's gonna look a bit predatory. Right?
Correct.
Pointing them in the right direction of what to do so they can express their wishes. But, Mia, my mum said to me, what the hell will you do? You know, when I do die? And you know, you poor thing, you've done all this and now you've gotta be the executor of the will. And I said, I'm gonna call the lawyer.
Yep.
That'll be my first phone call. I won't know what to do. And do they step you through it all?
Yeah. So it's important to know if you're the executor. You are the executor. So you still need to, you know, the buck stops with you. Right. So you still need to make decisions, you still need to sign off on things and, you know, you're still responsible for the administration of the estate. You can get a lawyer to do the Legal work for you. Now, the lawyer can't do everything, damn it. So they will probably tell you you need to, you know, you need to clear the house out, for example, and things like that. So, you know, you'll go and do those sorts of things. Of things. The lawyer's there to advise you through the legal process of administering the estate, but ultimately you're still responsible for the administration of the estate.
I just think a lot of people in the Club Savage generation will, because they're the main carer. They'll probably be the executor of the will.
Yep.
And you're right, it can get really messy with families. There can be breakdowns. It can be really, really a very stressful time. Have you seen that happen a lot?
I hate to say it, but we have seen so many examples of people being appointed executor and either they've not wanting to do it and then they won't do it and they procrastinate and then the estate ends up in a bit of a mess because they haven't actually taken the steps to do what they're required to do. So we've seen that. We've seen joint appointments. So two, you know, siblings being appointed or the executors. Two executors. And the one that comes to mind for me was two sisters that were appointed and the sibling rivalry between the two of them was evident many years before Mum had passed away. Unfortunately, this played out in the administration of the estate to the point that the court removed them as executors and appointed an independent administrator.
So that can happen. If it gets really messy, it goes to a court.
Yes. Because the beneficiaries of the estate were like, well, are you going to administer the estate or not? And they were too busy arguing. So, in fact, one of their kids, who was the grandchild of the deceased, who had an entitlement in the estate, brought an application to have them removed as the executors and the court did remove them and an independent administrator was appointed in that case. Unfortunately, we're also seeing. This is really sad, this one. Executors running off with the money.
So can they do that?
No, they can't.
They can't.
They're busted. Do it. Yeah, but that doesn't stop them.
It doesn't stop them trying. Doesn't stop them trying.
So, unfortunately, we have. I've heard of two situations now, only in the last six months, where the person who was responsible for the administration of the estate did not pay the beneficiaries. And pocketed the money themselves. And the beneficiaries are now saying, well, where's our entitlement? Obviously the money is not there anymore. They. They've blown it. Yeah. And there's absolutely very little they can do to get that money back.
Gosh gee. People can be. Yeah, people can be fabulous. People can be not so fabulous. And I think a lot of this area of life and death can bring out some, some really bad things. What if a parent dies without a will? Is that really messy too?
It can be. So if you die without a will, the. We've got legislation in every single state, sorry, in every single state in Australia and territory that sets out the entitlement of the estate if you die without a will. So we've got some clarity around who's entitled to the estate. Where it becomes tricky is the role of the administrator. So I mentioned appointing an executor in your will and you make that choice when you die without a will, obviously you haven't appointed someone to take on that role. So the law says that the person who's got the biggest entitlement in the estate on intestacy is then entitled to take out administration. Now that can be tricky where you've got a number of people who've all got an equal entitlement. For example the kids, there might be two or three of them.
It's split three ways.
Split three ways. And what, do all three of them make the application? Do they all get along to make the application? Do they just agree to appoint someone else to act independently? So lots of things to think about. If you've got people outside the jurisdiction, there's another, you know, if they live overseas, for example, that's another consideration.
Oh yeah. And so I'm assuming you can't be the executor, the enduring power of attorney or the guardian, have guardianship. If you live overseas, you've got to be in the same country as your parent. Can you be interstate?
So it gets a little bit tricky. Being overseas can expose a deceased estate. So if you've appointed someone who is non resident here for tax purposes and they're in another jurisdiction, so the usa for example, it's not a good idea for them to take out a grant of probate. You will expose the Australian estate to unnecessary taxes by virtue of the fact that you've got a foreign person acting as the executor of the estate. So that's not a good idea to appoint someone as the executor if they're living overseas. Powers of Attorney and guardianship are different. You can still act, but there's that practical element.
It's a bit hard when they're away.
Yeah, you know, your different time zones, decisions need to be made, you know, documents need to be signed. Look, I know we live in a fairly, you know, a society where things can, you know, you communicate quite easily, you get documents exchanged quite. But there's still time, it still takes time, you know, you might not, you know, to get a witness in another jurisdiction might not be quite the witnesses that we have in this jurisdiction. So there can be some practical issues that you would really need to think through if you were going to do it.
Does it cost a lot of money?
No, it doesn't have to. For a few hundred dollars you can get the whole thing done. You can go to a lawyer, you can go to any public trustee in. In Australia they offer very competitive rates and for some people it's for free, depending on whether you have got. So in New South Wales, for example, at Trustee and Guardian we offer the service free of charge for people who are on a full age pension. And for other people, depends on what type of will and what your circumstances are. You know, you could pay a little bit more, but from a few hundred dollars you can pretty much get your will, power of attorney and guardianship document done.
And then you've got a couple hundred bucks for some peace of mind and you've got. Yes, if everything hits the fan and everything gets messy, it's worth it. It'd be good to know that you've got that all set up. So get your parents onto it, get
yourself onto it, tell everyone to get one.
Okay. That is fantastic. I do feel a lot clearer about it now. It's really important to do so get this stuff done. Marie, thank you so much. We'll put a link to that website, to your website in our show notes so people can click on that and have a look. Depending on where they are in Australia, I think that'll be really helpful. Do email us with any ideas you would like us to cover on the pod@hellolubsandwich.com Follow us on social media, give us a rating and let us know if this has really helped you or perhaps brought up some things for you and your family and what went on. You can always chat your name in the email. We love to get them so just remember you are doing a great job and while you have got them, we have got you. Today's episode was supported by New South Wales Trustee and Guardian wills, power of attorney and enduring guardianship sorted properly so the people you love aren't left guessing. Search New South Wales Trustee and Guardian or call 1300-10-2030. Today's episode was supported by Australian Unity Home Health and Care Proactive local care that helps your parents stay independent and living well at home. Visit australianunity.com.
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