A notary public is a public official who has been appointed with the authority to provide services in relation to certain non-contentious concerns such as estates, deeds, powers-of-attorney, and international business. A notary might administer oaths, take affidavits, prepare, witness, and authenticate the execution of certain documents, and prepare ship’s protests in cases of damage. Commercial or personal documents that either originate from or are signed in another country generally must be notarized to be officially recorded and take legal effect. A notary must remain impartial in these matters as his duty is to the transaction itself and not just to one party.

Notary services include:

1. Attestation of documents and certification of their due execution for use in Australia and internationally
2. Preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use in Australia and internationally
3. Administering of oaths for use in Australia and internationally
4. Witnessing affidavits, statutory declarations and other documents for use in Australia and internationally
5. Certification of copy documents for use Australia and internationally
6. Exemplification of official documents for use internationally
7. Noting and protesting of bills of exchange
8. Preparation of ships’ protests
9. Providing certificates as to Australian law and legal practice

Testamentary Trusts are legal mechanisms that follow pre-set conditions (as designated by you) on when and how your assets will be distributed upon your death. The trust is formed by a declaration usually contained in your will and that takes effect only upon your death. Using a trust gives you the ability to control the timing and method of distribution of your assets, but also can save you in taxes, reduce liability to creditors, and avoid the necessity of probate court (the body that administers wills). Most importantly a trust will allow you to protect your assets and provide for your loved ones (especially young children and other dependents) over a period of time.

A testamentary trust comes into effect upon your death with the express purpose of allocating your assets to your designated beneficiaries.

A trust is not a substitute for a will, but is rather an estate planning tool that is used in conjunction with a will as part of an overall estate planning strategy.  The terms of a testamentary trust should be developed by working closely with one’s solicitor and should take into account any special needs of your dependents.

Trusts are not just for the wealthy! You may benefit from establishing a trust if:

• You have heirs who are still dependent upon you for their education maintenance or advancement in their lives.
• You have heirs who have special needs due to health or disability
• You wish to leave your estate to your heirs in such a way that it is not directly or immediately payable to them upon your death. You may want to distribute in several portions at set time intervals or upon certain live events (such as graduation from university)
• You want to support a surviving spouse, but upon their death, you want a portion of your estate to go to other chosen heirs such as children from a first marriage
• You wish to protect your heirs and assets from claims by their creditors spouses or de-factos

Wills

A will is the primary document that deals with one’s estate and it is therefore important to “get it right”. Wills deal with the distribution of your assets but it is also an opportunity for you state your wishes and desires on other aspects of your life and passing. You can make directions as to organ transplants; cremation; specific religious practices to follow, and even the location of your final interment. You can state your wishes as to who and how you want your children to be cared for and you can gift small items of high emotional or familial significance.

Simply put, everyone who is an adult needs a will. If you die without a will (known as dying ‘intestate’) the courts will decide how your assets are distributed (often by standard formulas based on familial relationship) and potentially create additional costs, delays, and headaches for your heirs. Taking the time to write out your intentions saves trouble for everyone down the line.

Formalizing your wishes in a will makes your desires ‘official’ so there is a known record as authorised and signed by you. We believe it is also critical for a properly trained solicitor to be involved in the process to ensure that your will hold up if challenged in court.

What if you change your mind? You may amend your will at any time. It’s recommended to review your will periodically to ensure it still is applicable to your financial and familial situation. At the same time, you’ll want to review your beneficiary designations for your retirement, pension, and insurance policies as those are automatically transferred.

While rarely considered a ‘fun’ process, estate planning is essential regardless of your net worth for peace of mind in knowing your assets will be distributed according to your desires. Planning ahead and recording your wishes will additionally reduce administrative costs and headaches for your family.

A full estate plan typically includes a will, assignment of power of attorney, and a living will/health care proxy (medical power of attorney). Family trusts may also be appropriate in some circumstances.

Estate Planning

The first step in estate planning should be to take inventory of your assets. This includes your investments, retirement savings, insurance policies, superannuation details, real estate and/or business interests. For assistance in this refer to our on line instruction form

A estate plan deals with all your assets, not just those that you own in your own name. Not all assets are dealt with in your will but an estate Plan includes everything. Consideration must be taken of any joint property (such as the family home) and any property which may be held in trusts which you may control (such as Family Trusts or superannuation).

You must then ask yourself: Who do you want to inherit these assets? Who do you want handling your financial affairs when you are unable to do so? Who do you want making medical decisions for you if you are unable to make them for yourself?

It is also critical to discuss your plans with your heirs as well as other family members who may question your decisions. It is better to avoid surprises or any challenges to your will which will hamper your wishes being carried out.

Advance health directives

Every legally competent adult has the right to accept or refuse any recommended health care. This is relatively easy when people are well and can speak for themselves. Unfortunately, people are not always conscious or able to communicate their wishes. This can create problems at times when critical decisions need to be made. Due to the introduction of the POWERS OF ATTORNEY ACT 1998 you can now give directions about your medical treatment at such a time.

The act provides for two basic forms of direction these being the

• ADVANCE HEALTH DIRECTIVE and the
• POWER OF ATTORNEY FOR PERSONAL OR HEALTH MATTERS.

The power of attorney deals with issues basically confined to day to day living arrangements and your personal care and management.

The Powers of Attorney Act 1998 does not allow an Attorney to decide special health matters such as donation of body tissue, sterilisation, termination of pregnancy, research or experimental care, certain psychiatric or other health matters specified in the regulations, or withholding or withdrawing life-sustaining medical treatment.

It is therefore necessary to address the larger issues such as essential life support and quality of life issues in the Advance Health Directive.

WHAT IS AN ADVANCE HEALTH DIRECTIVE?

An Advance Health Directive is a document that states your wishes or directions regarding your future health care for various medical conditions or in various medical situations. There are some directives that will not be able to be enforced such as euthanasia. This would not be enforceable as under the Queensland Criminal Code, it is an offence to accelerate the death of a person by an act or omission. It is also an offence to assist another person to commit suicide.
At your choice your Advance Health Directive can apply at any time when you are unable to decide for yourself, or only if you are terminally ill. Either way it comes into effect only if and when you are unable to make your own decisions.

It can also be revoked varied or amended at any time but only by you and obviously only when you are mentally fit and capable of making that sort of decision.

It is a legislative requirement that your Advance Health Directive be signed in the presence of a doctor who certifies that you were not suffering from depression or any other condition that would affect your ability to understand the decisions you have made in the document.

WHO IS YOUR HEALTH DIRECTOR?

The answer to this is simple. You are. The document is one which states your specific wishes. It is not one which passes the decision making process over to a third person or even a “committee” of people.

The document details a number of specific circumstances and you have the opportunity of stating in advance your wishes (or directives) in those circumstances. It also has provision for “other” circumstances where you can specify your feelings on palliative care, life support and any other issue not covered in the standard options.

It is strongly recommended that these issues be discussed with your doctor (or if appropriate your specialist) in order that you truly understand the medical issues that you are dealing with.

ISSUES TO THINK ABOUT

You should think clearly about what you would want your medical treatment to achieve if you become ill. For example:

• What level of quality of life would be acceptable to you?
• What level of dignity of life would be acceptable to you?
• How will you know what technology is available for use in certain conditions?
• What is really “incurable” you may live long enough to find a cure for your disease. (refer back to the issues of quality and dignity of life)
• Do you have any religious beliefs that may affect your treatment?
• If you have decided that you do not wish to have life support and yet wish to donate your organs would you be prepared to have life support for long enough to be able to allow the effective transplant of the organs to their recipient?
• It is not possible to anticipate everything and so you should consider how specifically you draft your directives.

As you can imagine the rules for witnessing this document are very strict. The witness must be

•  Over 21 Years of Age and either
• A Justice of the Peace; or
• A Lawyer; or
• Notary Public; or
• Commissioner of oaths

and the witness must not be (for obvious reasons)

• Your attorney
• A Relation of the Attorney
• Your spouse
• A beneficiary under your will
• Any Other Relative
• Your current Nurse or Doctor
• The current paid carer or health care provider for the Principal.

This brochure has been designed as a general guide only. As can be seen from the questions raised in this brochure nothing is ever as simple as it seems and the exercise of legal rights is fraught with decision making and responsibility. Should you need assistance and guidance, or merely to clarify your position, please do not hesitate to contact us.

Why Do I need a Power of Attorney?

The power to appoint someone as your Attorney has been with us for sometime and is a legal power which is often used to facilitate commercial transactions.

The granting of a Power of Attorney gives to the recipient the power to do all actions and things and to bind third parties just as if the original grantor of the Power of Attorney had entered into the Contract themselves.

There are many different forms of Power of Attorney however these fit into three (3) main categories:-

Limited Powers of Attorney

These are granted by a person to their Attorney to allow them to undertake some limited transaction. Limited Powers of Attorney for instance may be limited to the dealing with Real Estate or even a particular piece of Real Estate. They may be limited to the dealing with Bank Accounts or they may be limited to the carrying out of a specific and particular transaction. These Powers of Attorney will only allow the Attorney to undertake those actions stipulated and none others.

Normal Powers of Attorney

The granting of a Power of Attorney allows the Attorney to carry out any transaction that the grantor of the power would be capable of carrying out themselves. This would include the buying, selling, mortgaging of any of the grantor’s property or assets.

N.B. It should be noted that whilst the granting of a Power of Attorney will allow the Attorney to bind its principal it will not allow the Attorney to assume any office or appointment.

An Attorney for instance does not have the power to represent its principal as a Director at a meeting of Directors of a company. Should you wish to allow somebody to represent you at a Director’s Meeting or as an officer of a company the correct method is to have that person appointed as an alternate Director. Alternate Directors are only capable of acting when you are not present yourself.

A Power of Attorney similarly will not allow the Attorney to assume the role of Trustee or Executor of anyone’s Will.

One of the short comings of a Power of Attorney is that the Attorney is only capable of doing what the grantor of the Power is capable of doing in their own right. If the grantor of the Power of Attorney suffers some legal infirmity (such as Alzheimers disease or dementure), then that legal incapacity is transferred to the Attorney and any signing of documents by the Attorney would not be binding and valid. This often used to cause problems when elderly people would sign a Power of Attorney in favour of their children to allow them to deal with Bank Accounts and their affairs generally as they grew older.

Enduring Powers of Attorney

To circumvent this problem a “new” style of Power of Attorney was introduced in 1994. This is called an Enduring Power of Attorney and briefly states that the grantor being of sound mind appoints the Attorney to act on its behalf even though the grantor may subsequently become incapable of entering into binding legal transactions. This would allow a situation where family members can act on behalf of their aged relatives even though the aged relatives may be incapable of entering into binding transactions on their own behalf.

A Power of Attorney is extinguished upon the death of the grantor. Obviously in that situation the grantor is incapable of entering into Contracts and legal binding obligations and so thus the Attorney is also incapable.

In 1998 The Powers of Attorney Act amended the law again to provide for the automatic repudiation of a grant in other situations such as divorce. If you are in any doubt at all about and power that you may have granted please ask.

Conflict of Interest

Many people do not realise that the Power of Attorney takes effect immediately upon execution. For this reason there is a duty to act in good faith.

There are sometimes situations that arise where the Attorney may wish to purchase some asset or deal in some way with an asset that would ultimately give them benefit.

Depending upon the situation it is questionable whether a Power of Attorney would extend so far as to allow such a transaction. To circumvent this it is our practice to add an additional clause to the Power of Attorney specifically allowing the Attorney to deal with the assets and estate of the grantor even though the Attorney might be receiving a benefit. This would allow children (who were an Attorney) to perhaps purchase their parents’ interest in a family home thus keeping it within the family.

Whilst our Enduring Power of Attorney does allow for this style of transaction it should be remembered that all transactions should ideally be supported by independent valuations and sufficient documentation.

Back up Powers

The normal scenario is that spouses or partners will grant reciprocal powers to each other. In this way each is covered should the other suffer some infirmity or be involved in an accident in which they may suffer head injuries.

This of course does not cover the situation where both people are in the same accident and one is killed outright and thus is incapable of acting as the Attorney for the other who may have survived but suffered serious injury.

Our recommendation is that one should not only have a power of attorney but should also have a second or “Back up” power in favour of a trusted friend or adviser who is not likely to be involved in “Family” accidents.

WHAT TO EXPECT WHEN FACED WITH THE UNEXPECTED

What to Do When Someone Dies

This is intended to be a brief guide to help those of you who are left behind deal with the unfortunate situations that death brings. Even on those occasions when death is expected, it is a surreal situation that often leaves those left behind unprepared.
If you have the chance, when a friend loved one, or even yourself is expected to die in the immediate future, you may wish to make funeral arrangements in advance.
Preparing the funeral in advance not only makes it easier for those left behind but a can also provide some catharsis to those left to carry out the final wishes and get them “just right”.

Often times if death occurs in a hospital, the doctors and staff together with the funeral director will assist with the paperwork. If the death occurs at home then ambulance staff will ensure that the family doctor (if there is one) and the police are called. This is usual procedure and required by law. It is nothing to be concerned about and has nothing to do with blame, guilt or responsibility for the death.

First Call

Once the reality of the situation has sunk in and you have had time to gather your thoughts you will need to make the “first call”

The purpose of the “first call” is to organise transportation from the place of death to a funeral home or other facility.

If you (or the deceased) are of a particular religious persuasion you may wish to call your local priest or religious representative. Usually they will be able to not only offer solace but also “talk you through” the process.

If this is not an option then the first call will usually be to a funeral director. It pays to check (if you have not already) whether the deceased had any prepaid funeral plans or if they have left behind a statement of their wishes.

The reason for this is to avoid the double-up of an additional transportation charge to subsequently have the deceased moved to another funeral facility.
Transportation.

Regardless of where the death has occurred it will always be necessary to transport the body to an approved facility. If the deceased did not live in the town or city where the death occurred or indeed if you are not located in the same city as where the death occurred, it will be necessary to arrange for transport to a temporary facility until arrangements can be made for the longer journey. In such circumstances it is recommended that you source a local funeral director who will take charge of the situation.

Unexpected deaths

If the death is unexpected or not attended or was due to unknown circumstances then the first call will usually be to the Police or the ambulance. These officials will normally assist to ensure that the correct procedure is followed.

Official Pronouncement of Death.

This can only be done by a medical practitioner and obviously needs to be done before the body can be dealt with. The attending physician, medical examiner (or if neither are available or in attendance, a coroner) will make the official pronouncement of the death.

If the death occurred in hospital or other care facility, this is usually arranged by the staff.
This is usually a harrowing time and in between the coming and going and the official processes you need to make time to contact family members. Often this task can be split up between family members and friends who can be co-opted to help.

Last but not least and if you are unsure as to who the executor is or whether there are any pre-arranged funeral plans or if there were any wishes as to organ donation and transplants, it is a good idea to call the deceased’s legal representative. They should be able to locate the last Will and testament and maybe any funeral plans or wishes that exist. They may also have instructions as to organ transplants and donation.

Organ donation

We often hear “Oh I’m old. They wouldn’t want my organs. Well you would be surprised at what can be used and what can’t. for further information you can visit the federal Government web site on organ donations. http://www.donatelife.gov.au/fact-sheets.

The Viewing

Death can often be a disturbing occurrence. Even if expected, the void that is left by the passing of someone close can be difficult to deal with. The process of “saying goodbye” can be very cathartic for those left behind. Often Mourners will benefit from time with their loved one, either on the day before or the day of the funeral, This can be done privately at the funeral home or sometimes is arranged as a vigil at the chapel with people taking it in turns to watch over the deceased until the funeral ceremony and burial or cremation This period is referred to as the Viewing and is common practice in many cultures and religions.

The Wake

As with the viewing, this allows a time of personal and shared reflection. The wake can merely be in the form of tea and cakes and remember when stories in the parish hall after the funeral or it may take the form of a back yard barbeque or a formal memorial dinner. In all cases it should be in a form that would have been approved by the departed and enjoyed by those remaining.

Sometimes the wake can be a formalised process due to cultural reasons such as the Tangi of the Pacific Islanders and sometimes it is an informal get-together. It is the shared remembering that is of importance.

The Death Certificate.

The official death certificate is issued by the Registry of Births, Deaths and Marriages.

Normally the Funeral director will register the death within 7 days of the burial (or cremation) and they will provide all formal information to obtain a copy of the formal Death Certificate.

The official death certificate issued from the Births Deaths & Marriages is different from the Cause of Death Certificate that is given by a doctor at the time of death or indeed from the certificates issue by ambulance attendants or the Police.

The “Official” Death Certificate is actually a printed certificate that is marked as an “extract from the register”. Obviously the death has to be recorded in the register before an extract can be taken and for this reason the “official Certificate” usually takes two to three weeks before it is available.

If you would like spare copies for members of the family or for organising the estate or probate (if required) you should ask your funeral director for additional copies.

Applications for a copy of a Death Certificate can be made at the Registry of Births, Deaths and Marriages. There will be a small charge for the service and you will be required to produce identification when uplifting them to ensure that the copies are only given to those who are entitled to them.

Financial and Administrative Matters

Funerals and all the attendant requirements can be expensive and can often leave people in a state of financial embarrassment. For this reason it is important to follow up on money due to the deceased as soon as possible Most death policies pay out immediately and are paid to the partner or spouse of the deceased. If the deceased was working there may be life cover in the superannuation policy or at the lease some holiday, long service or even unclaimed wages due. These can often ease the burden.
Contact should be made with representatives of these companies as soon as possible.
In addition to the financial considerations there are numerous practical and basic considerations such as securing the deceased’s home and possessions and maybe the changing of the locks.

For a check list we have prepared please follow the link