One of the most persistent — and most costly — misconceptions about estate planning is that it is an activity reserved for the wealthy. The reality is considerably more democratic: if you are over eighteen years of age and have any assets whatsoever, you need a Will.
Estate planning is one of many legal issues facing lesbian and gay couples. Increasing numbers of LGBT parents are raising children.
In the law, there are recognised categories of parenthood, including biological (genetic), gestational, surrogate, and social.
Children raised by same-sex parents may be the product of adoption, artificial insemination, surrogate birth, or biological parenthood, yet in most cases only one partner is recognised as the legal parent, with the other parent remaining a legal stranger to the child.
The phrase “nuclear family” has traditionally referred to a married heterosexual couple raising their own biological children. Nowadays, more children are living in non-traditional families than ever before. This can lead to tricky legal issues if the couple ends their relationship and the non–legally recognised parent tries to maintain contact with the child.
Senior lawyer specialising in estate planning and Wills in Adelaide.
Rod Genders from Genders and Partners, the oldest law firm in South Australia, says that state law does not permit animals to be direct beneficiaries of a Will, as the law regards the animals themselves as property.
However, caring pet owners can leave money for their pets in pet trusts with provisions for how it is to be spent on the pet.
As our population ages and fewer couples have children, there has been an attitude shift where many people have come to view their animals less as pets and more as members of the family.
Many people mistakenly believe that having a simple legal Will covers all their needs, yet it’s only one piece of the legal protection puzzle. Without proper estate planning, you’re leaving your wealth and assets quite vulnerable and unprotected.
In some circumstances, it can mean the difference between having your wealth distributed the way you want, or having it given to those you don’t want anything to do with anymore. Or it may even be the difference between losing your home and keeping it, when unexpected events arise, like an accident that leaves you alive but incapacitated.
Even if you have a legal Will, that’s only one piece of the puzzle to protect you, your family and your assets. Without an integrated and up-to-date estate plan, you are gambling with your future.
As a parent, what is our worst fear?
For most of us, it would be receiving that phone call telling us that our child is having a medical emergency. It might be a car accident, or some other health crisis, but as soon as we are notified we want to rush into action to help them. No matter how old they are, they will always be our child, even if they are now an adult.
It used to be that when a child turned 21, he would receive a key to the front-door of the family home, in a rite-of-passage symbolising and acknowledging their transition from child to adult.
With the faster pace of life, and changing societal expectations, the legal age-of-majority is now18.
Did you know that if your children are aged 18 or older, even if they are still living at home with you, then you are no longer able to make their medical decisions for them? In fact, you have no right to speak with their doctor or nurses or see their medical records.
The birth or adoption of a child transforms your estate planning obligations profoundly. Where previously the primary purpose of a Will was to ensure your assets pass to the right people, you must now also consider who will care for your child if you and your partner are no longer alive, and how your child’s inheritance will be managed until they reach maturity. This article sets out the key estate planning steps for new and young parents in South Australia.
Of all the countries in the world, Australia ranks in the top 5 with longest lifespans (17 places ahead of the UK and 33 places ahead of the USA). Each year, our average life expectancy continues to increase.
And yet, more than half of adult Australians do not have a legal Will, and even fewer have an integrated estate plan.
Life used to be simpler. People worked for the same employer for their entire career. They had government-guaranteed pensions. Medical expenses were manageable. Divorce was rare and remarriages rarer still. 25 years ago, when my legal career began, I can clearly recall the expression “broken home” being used as an excuse for various misconduct. Most people were not invested in the stock market.
But, the trade-off was that although life was simpler, it was also significantly shorter. Retirement didn’t last long, so people didn’t worry as much about having sufficient savings to last a lifetime. Long periods of incapacity were unusual. You worked, then you died.
When the Australian Government began the aged pension in the 1920’s, they set the age-of-eligibility at 65 for men. At that time, the average life expectancy for men was only 63, so the Government did not expect to have to pay out much for the pension, nor medical treatment, aged care or publically assisted accommodation.
Challenging Estate Planning Conversations
In family life there are a number of “Talks” which parents need to have with their children. Remember “Where do babies come from?”
Well, much later in life, older parents need to talk to their adult children about Wills and powers-of-attorney, elder care and end-of-life decisions.
In my practice as a lawyer specialising in estate planning, I have repeatedly noticed that my older clients are generally much more willing to discuss estate planning issues than their adult children.
I have speculated as to the reasons for this, and have come up with a list of possible explanations:
A recent study in the New England Journal of Medicine, shows one in four elderly people require someone else to make decisions about their medical care at the end of their lives.
These findings support the value of advance healthcare directives as a means of making end-of-life treatment preferences known (sometimes called anticipatory directives or living wills).
The study found that such formal estate planning documents improved the likelihood that a patient’s wishes would be followed and reduced emotional trauma among family members.
The results illustrate the value of people making their end-of-life wishes known in an advance directive (living will) as well as designating someone to make treatment decisions for them before the end-of-life stage. This is why both a Natural Death Advance Directive and a Medical Power of Attorney are necessary parts of a modern integrated estate plan. Each document fulfils a specific purpose.
The Associated Press reports: “In the study, those who spelled out their preferences in living wills usually got the treatment they wanted. Only a few wanted heroic measures to prolong their lives. The researchers said it’s the first accounting of how many of the elderly really end up needing medical decisions made for them.”
