10(b) The financial and legal stuff you need to think about
The following information is of general information only.
It is not a substitute for legal advice.
You should obtain legal advice on your own specific situation.
There are some practicalities that you need to think about.
The material which follows is necessarily confronting. You may well feel that you are not up to dealing with this stuff “right now” because you are too busy with appointments, treatment and generally stressing out. That is perfectly understandable and there are, after all, only 24 hours in a day. Having said that, you might find yourself in one awful mess if you don’t make sure these issues are addressed while you still can. As they say, “JUST DO IT”.
The old “putting your affairs in order” does have a place here, and these things need to be dealt with while you are indisputably in a good cognitive state.
Wills
Everyone should have a will. A valid will is a legal statement of your intention of how your assets should be distributed after you die. If you die without making a valid will (dying “intestate”) your assets are distributed in accordance with a formula set out by the Courts. No allowance is made for the fact that you wanted to leave the bulk of your estate to your sister who is doing it hard and needs all the help she can get, or that you wanted to leave your stamp collection to Uncle Fred.
It is estimated that of the over two and a half thousand people who died in the World Trade Centre on 9/11, two thirds died with no will in place. Writing a will is not an activity to be left until your twilight years. In your current situation, it is important that both the brain tumour patient and the carer revisit, or write, their will. |
A will is revoked on marriage (unless it is worded to indicate that it was made in contemplation of marriage) so if you made your will years ago, before you married, you should dust it off and make a new one. A gift to a spouse is automatically revoked on divorce, so you should revisit your will if you have been divorced since it was made. You do not need to see a solicitor in order to write a will, will kits are available or you could do it yourself. However it is important to ensure that all the technicalities are adhered to so if in doubt, consult an expert.
If you have children, you also need to consider appointing a guardian who will be responsible for raising your children in the event that both parents die prior to the children reaching their majority (18 years of age). When you have come to a decision as to who you think is the best person to fulfill that responsibility, you need to talk it over with that person to ensure that they are prepared to do that.
Enduring Power of Attorney and Guardianship
A power of attorney is a document where the donor appoints an attorney to manage their affairs. An enduring power of attorney continues to be effective even if the donor has lost capacity to look after their own affairs. Each State in Australia has its own legislation on powers of attorney. A powerof attorney is recognised by all institutions such as banks, share registries, and Land Titles Offices. As the format varies between States, you should either consult a solicitor or search the Internet for the appropriate format for where you live.
Some organisations such as banks allow you to nominate a third party to operate on your accounts without the need for a power of attorney. It is easier to deal with these organisations if you use their third party authority forms, and you should set that up with your usual bank/building society/credit union wherever possible.
It is inevitable though that you will not think of every possible touch-point you have with different organisations and government departments, and a valid power of attorney will be accepted anywhere in Australia. Having a power of attorney signed and locked away in the filing cabinet for a rainy day is a sensible thing and makes things much less stressful for the people attempting to manage your affairs.
In some states (at the time of writing, those states are New South Wales, Tasmania, Western Australia and South Australia) while a power of attorney allows the attorney to manage your financial affairs, it does not authorise them to manage your health or medical treatment. At this time it is a really good idea to consider appointing a guardian (not to be confused with the guardian you have appointed to raise your children in the event that the children are left without either parent), who would be responsible for making personal or lifestyle decisions for you in the event that you are not in a position to do so. By appointing an enduring guardian, you are choosing who will make these decisions for you if you can’t. Again, the format varies from State to State, so consult your solicitor or search the Internet for the relevant material for you.
These documents cannot be signed by someone who is not in a mental state to manage their own affairs. They also cannot be signed by a third party, so an attorney cannot sign a guardianship appointment on your behalf if you are not capable of doing so.
Use of a solicitor
It is important that these documents are prepared and executed in accordance with law, or they are invalid. While it is not a legal requirement that these documents be prepared by a solicitor, it is preferable to see a solicitor to ensure that all formalities are properly complied with. It is money well spent. Some local solicitors offer the first consultation free of charge, so shop around (over the phone or by email) to see what deal you can reach. You are best approaching your local suburban/town firm rather than paying inflated prices for the coffee and biscuits you’d be offered at a multinational firm in the CBD.
When you make your appointment, ask what you should bring with you. You have enough stresses at the moment without needing to go back to them for a second appointment because you left something at home.
Financial stuff.
Every member of our group comes to us with different financial pressures. Some with private health insurance, others not, some with unlimited resources to fight this demon, others battling to deal with the added crippling financial blow this may have to an already fraught financial situation. The situation is different if the patient is the sole breadwinner, or in a partnership of two breadwinners, or the carer is the sole bread winner. All we can do here is offer some suggestions that you should consider, and investigate if they are relevant to you.
Work. Things to consider – annual leave, sick leave, long service leave. If you are a carer, does your employer offer you the ability to take sick leave as carer’s leave? Investigate your employer’s policies and take advantage of everything that is available to you. If you can take sick leave, do. Try to keep your annual leave for when you need a holiday. Having a brain tumour, or caring for a patient with a brain tumour, is no holiday.
Centrelink. You may be eligible for a number of pensions or benefits. Contact the social worker service at Centrelink. You do not need to queue on the general phone line – there is a social worker dedicated number. Here is the link for information abouth the Centrelink social worker service.
To speak directly to a Centrelink social worker, ring 13 1794.
The Centrelink general website is a good source of general information on benefits available. You should also speak to the social worker at the hospital who will be able to assist as well.
Banks. If you have a home loan and you are concerned about how you will be able to continue to make your loan repayments, talk to your bank early and often. You may be able to come to a repayment arrangement. No guarantees, but you are more likely to be able to come to a suitable solution if you approach them early, rather than when your repayments are way behind.
If you have joint accounts (brain tumour patient and primary carer) consider opening an account in the carer’s name only as well, and keep some funds in that. Banks have different policies on what happens to the funds in joint accounts on the death of one of the account holders. Yes, absolutely the funds pass to the survivor but the bank may require you to cease using and close the joint account and open another one in the survivor’s name. This is a monumental pain if you have lots of direct debits and credits going out of and into the joint account...
Banks will reimburse the person who paid the funeral expenses out of the account of the deceased, upon presentation of a copy of the death certificate and the receipt for the funeral expenses. Or, if you need the money to pay the funeral expenses, they will release funds on receipt of a copy of the invoice from the funeral director.
Financial advice. You should consider obtaining financial advice from a financial planner, particularly if you have superannuation funds that you may be able to access.
Frequent flyer points/Fly-buys and similar rewards schemes: Check the terms and conditions. Some points lapse on the death of the holder, but you may be able to transfer them to family members beforehand. If you can’t transfer them, claim them if possible. You’ve spent a lot of money to amass those points.
Hard stuff? – absolutely. But as we said upfront, JUST DO IT.