Rod Genders is a senior Australian lawyer specialising in Wills and Estate Planning, Probate and Estate Administration, Trusts and Guardianship and Inheritance Claims and Contested Estates in South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia. Rod is an international author and speaker. Rod is the 3rd generation of Genders in the law and has been practising specialised law since the mid 80’s. For over 10 years he served on the Council of the Law Society of South Australia and is a senior member of its Succession Law Committee. For 8 years Rod was a founding committee member of the South Australian branch of the London-based Society of Trusts and Estate Practitioners (STEP) and was the founding Chair of the international STEP Digital Assets Special Interest Group. For over 25 years Rod has chaired a private committee enquiring into the affairs of protected persons. He is a member of the Law Council of Australia, a member of the Notaries Society of South Australia and an associate member of the American Bar Association.
The Age Pension was initially introduced in Australia in 1909 when the average life expectancy was below the eligibility age. It was thought that most people would not live long enough to receive it, and those that did would not get it for long.
The pension was designed to provide income support to older Australians who meet age and income requirements.
It is funded by Australian taxpayers and it accounts for a huge and growing chunk of our national expenditure.
In the UK recently a person has been fined the equivalent of many thousands of dollars for using an expired power of attorney to withdraw money from the principal’s bank account after her death, even though he acted with the consent of her sole beneficiary (her son).
The agent was a close friend of the deceased, and of her only son. Although aware of her death, over the subsequent weeks he made three withdrawals from her personal bank accounts.
Some of this money went towards funding a property transaction which had been specifically authorised by the deceased before her death.
Other funds were either used for legitimate and authorised estate expenses, or were not used at all and later returned to the estate account.
An increasing number of Baby Boomer parents are concerned about leaving unconditional bequests in their Wills to their grown-up children, for fear that they will squander their inheritance.
As parents we love our children and want them to receive the benefit from our hard work after we’re gone.
However, some kids just seem to attract hard luck and trouble, don’t they? They can be immature, have difficulty holding a job, or are just poor money managers. Some develop a bad and expensive habit, like gambling, drugs or alcohol, while others suffer mental illness.
Then there are the risky-business kids, who constantly fear the door-knock from the bailiffs because they run their businesses on the knife-edge of bankruptcy and litigation.
Parents of a child with special needs face unique challenges when planning their estates, and unless they address them correctly, they risk making mistakes that could have long-term, costly consequences for their child.
For example, they may make the child ineligible for important federal government benefits once he or she becomes an adult, and they may leave their child without the financial resources he or she needs to live the same kind of life they provided when they were alive.
The mistakes that parents of a special needs child often make when they are planning their estates can have long-term negative consequences for the child and significantly impact his or her lifestyle once the parents are deceased or become incapacitated and can no longer look out for their special needs son or daughter.
Special needs beneficiaries (often children) are those that need extra care because of a disability, such as autism, cerebral palsy, mental retardation, or other physical or mental condition. Many Australian parents have children with special needs and know all too well about the extra care they require, the government benefits they rely on, and the financial challenges they face.
Many families with special needs children need to rely on Medicare and Centrelink to help with the high cost of health care. This financial support can continue throughout the child’s life. Parents and grandparents of special needs children and adults may want to provide for their disabled loved ones in their Will but they do not want to risk losing the child’s eligibility for public benefits. A Special Disability Trust is the answer.
A Special Disability Trust (sometimes called a Special Needs Trust) allows a person with a physical or mental disability to have assets held in a particular type of government-approved trust and those assets will be excluded from consideration for purposes of qualifying for certain government benefits.
Expenses that can be paid for by the trust may be such items as special medical aids & equipment, medical & dental needs, medication, accommodation, entertainment & transportation needs.
Until March 2016, the Court fee for a Grant of Probate in Common Form in South Australia was a flat $1,114.00, regardless of the value of the estate.
This changed from 28th February 2016, but only the very smallest estates saw any reduction in the Court fee. Everyone else is now paying more. And then the State Government increased these fees again just 4 months later!
Since 1st July 2014 this new style of document in South Australia has replaced the older documents known as Medical Power of Attorney, Enduring Power of Guardianship and Natural Death Anticipatory Directive.
This Advance Care Directive document allows you to appoint one or more persons to act as your Substitute Decision Maker, to make decisions for you about your medical & health care treatment and accommodation issues if you’re unable to do so for yourself. This can make all the difference between ensuring your wishes are met in very stressful times, and having treatment and care almost forced upon you against your wishes.
An Advance Care Directive is a legal form that allows people over the age of 18 years to state their wishes, preferences and instructions for future health care, end of life, living arrangements and personal matters and/or
An Advance Care Directive cannot be used to make financial decisions. This requires a different document known as a Power of Attorney.
For a long time the official retirement age in Australia was 65 for men and 60 for women.
This was gradually changed to be 65 for everyone. Then the Labor Government increased it to 67 and in April 2014 the Federal Liberal Treasurer Joe Hockey announced the Government’s intention to increase the age of eligibility for the aged pension to 70.
The rationale behind this is that we are living longer on average, and the social security system cannot sustain the current level of payments for a longer period, especially with relatively fewer Australians remaining in the workforce.
When you are going through a separation, you need to update your estate planning documents to protect yourself, your children & family and your assets. Here are some important matters to consider after a relationship breakup.
Who Looks After Your Kids if You Cannot
- There may come a time when an unmarried, separated or divorced parent is unable, owing to physical or mental incapacity, to take care of his or her minor children. If a parent dies, the minor children will need a guardian. In these circumstances, those caring for the children will need direction—as will the Courts. By writing and executing a Will that includes instructions on guardianship, a parent may select someone with the legal authority to act for minor children and assume control over the assets of the children.
When you are going through a separation, you need to update your estate planning documents to protect yourself, your children & family and your assets. Here are some important matters to consider after a relationship breakup.
Other Documents in Addition to Your Will
- After separating, you should create a new Will. You should also review your powers of attorney, advance directives, trusts, proxy, delegation, etc. You may well need to formally revoke these important legal documents, so that your ‘ex’ cannot continue to control aspects of your life. However to be valid, these ‘revocation’ documents must be communicated to the individuals whom you had previously appointed, so these are not as confidential as the Will.
