A legal marriage inherently affords certain rights to husbands and wives when a spouse dies without a Will or estate plan. The same cannot be said for LGBT couples, who must meet certain criteria to qualify as domestic partnerships under the law. Without solid legal documentation of your wishes for your partner, children, health care and finances, you and your loved ones could suffer needlessly in the event that you become incapacitated or die. Here are just six of the numerous reasons LGBT couples need to meet with Genders & Partners as soon as possible for Wills & estate planning in Adelaide.
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.
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.
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.”
There are lots of reasons why estate plans fail, including poor documents, failure to update them, careless titling of assets, and forgetting to nominate or update beneficiary designations.
Then there are the situational problems, where there is a failure to properly address family issues and dynamics.
So how do you define an estate plan that will work for you and your family when it’s really needed?
Let’s take a quick look at some of the features I would ideally wish to see in an integrated estate plan:
It should give you access and control over your property while you are alive and well. This won’t be the case if your assets are jointly titled with someone other than your spouse or if you fail to follow through on the terms of a property settlement agreement after a divorce.
Are you nervous about the recent volatility in the markets, as you approach retirement age?
Everyone hopes for a comfortable retirement, but how many really plan for a long and fulfilling retirement? You know you should put money away for your retirement, but as that day approaches (particularly with world share markets and superannuation funds in crisis), which financial and investment strategies should you follow to help yourself enjoy the lifestyle you’ve envisioned?
You could literally spend decades in retirement. With advances in medicine and healthcare, it is actually becoming increasingly likely that Australians will live longer in retirement than they were in the workforce. Keep this type of longevity in mind when you create investment strategies for your retirement.
… estate planning and the need to be prepared…
Authors, politicians, revolutionaries, psychologists and philosophers have long proclaimed that civilisation is only 3 days – or 9 meals – away from anarchy, barbarism and revolution.
Think about it – no food on supermarket shelves – how long before law and order started to break down, and suburban streets descend into chaos and mob-rule?
It’s been a long time since any of us in Australia were genuinely hungry. I mean starving from lack of available food, not the latest Hollywood diet.
But imagine a sudden loss of electrical power, like Auckland experienced in 1998. That’s only 15 years ago, in a modern first world country. There it took five weeks to restore that power supply, and about 60,000 people had to relocate to other New Zealand cities, or even to Australia.
So imagine your whole state without power for weeks. No electric light or refrigeration. No internet, television, radio or phones. No banking or EFTPOS. The electric pumps at the service stations shutdown oil and petrol supplies, so no trucks delivering food.
No electrical pumps means eventually no running water.
Asset protection is a valuable and important part of a modern integrated estate plan. No matter how many assets you have, you should make an effort to protect them, but try to avoid these common mistakes:
1. Incorrectly registering or “titling” your assets. In my work, I see many clients who are convinced that their assets are appropriately titled, only to discover serious errors upon checking. This is often a case where the weakest link in the chain (maybe some teenage clerk at a busy registry office) has mis-described the asset or its owners. Correct registration of assets is critical to the ownership & control tests which underpin all of your legal protections.
2. Deferring or delaying your protection planning. If you wait too long, it will be too late. Like insurance, you generally cannot apply for protection after the disaster has already struck. The longer your asset protection plan has been in place, the stronger it is likely to be. It will also cost less to do the planning long before you have a problem. Once a lawsuit has been filed against you, any transfers you make thereafter can be prevented or overturned. Make sure you have your asset protection plan in place and up to date long before you need it.
3. Mistakenly committing fraudulent transfers. If you try to transfer assets to a friend or family member in order to avoid losing them during a settlement, you may find that the courts can reverse the transfer and hold the parties to the transfer partially responsible for criminal &/or civil penalties. People really have gone to jail for attempting this. However, if the transfer is done carefully, and well before any litigation arises, then this strategy can be made to work in certain circumstances.