How these legal documents can save heartache or a headache if tragedy strikes

It’s a topic most of us would rather put off – but not confronting what happens if you die or can’t make important decisions can store up trouble for the future.

Preparing your estate now in case of tragedy can prevent conflict and confusion for your loved ones later.

If you were incapacitated due to poor health or injury would your family know what personal, financial and legal decisions to make? And if you were to pass away, would your loved ones know exactly how you’d like to divide your estate?

Thankfully, there are a range of different legal documents that address each of these scenarios, giving you and relatives peace of mind.

But what happens if you don’t have these in place?

What happens I don’t have Enduring Power of Attorney arranged?

Your attorney(s) can confidently make decisions as to your legal, financial and personal future whilst you’re not able to do so yourself.

This can happen if you lose capacity through illness or injury and are unable to process, understand or retain information.

Without appointing attorney(s), there can be uncertainty about who’s in charge of making decisions on your behalf. A court or tribunal may have to step in to appoint someone to make important decisions, but they may not be your preferred choice.

Why would I need an Advance Care Directive?

This document spells out what’s important to you and how you would want them to proceed if you were unable to make decisions about health care treatments.

Without these details, whoever’s making these important decisions may not follow your preferences – including what you’d like for end-of-life care. 

I’ve not appointed a Medical Treatment Decision Maker

If you’ve appointed a Medical Treatment Decision Maker, they can refer to your Advance Care Directive to ensure your medical wishes are carried out.

However, without one, the law determines who will make decisions for you. This may not be the person you want of is best suited to making these decisions.

What happens if I die without a Will?

An up to date Will should give you confidence that your estate will be distributed as per your wishes, providing for those you love and care about.

If you don’t have a Will, you die intestate. This means that the intestacy formula determines how and to whom your estate will be distributed. This in turn can create family disputes and may not be in line with what you want or expect.

The intestate formula varies depending on which state or territory you are in and can be affected by how valuable the estate is.

But generally, the formula will decide who gets what, depending on next of kin. So if there’s no surviving partner or spouse, children would be next in line and would get equal shares of the estate.

If there are no surviving children, the estate is usually divided to:

1. Parents
2. Siblings
3. Grandparents
4. Aunts and uncles
5. Cousins

Statement of Wishes

A Letter of Wishes is a document that can help give you peace of mind that those sentimental decisions will be listened to after you pass away.

Without it your family and loved ones might not know how you would have liked things handled after your passing.

This confusion and uncertainty can cause stress and conflict at an already difficult time.