Same Sex Estate Planning – Wills & Power of Attorney

Delving into the uncomfortable yet crucial consideration of life-altering circumstances, it’s prudent to envision potential scenarios and outline your preferences in advance. Contemplating decisions regarding life support and organ donation in case of incapacitation is vital. Equally important is designating a trusted individual to make decisions on your behalf should you be unable to do so.

Does your family know your wishes as to what will happen if you are in a serious accident, or if you want to donate your organs after you die? Will you partner, a friend or your family members make this decision for you if you are unable? If you do not plan this in advance and you are not in a de facto relationship or do not have a Power of Attorney or Enduring Guardian, your next of kin is your closest relative. This can get complicated when this person does not know you that well.

The poignant 2006 Same-Sex: Same Entitlements Inquiry highlighted the denial of a lesbian’s right to bid farewell to her dying partner due to legal definitions:

“One of our lesbian friends lay ill and dying in her hospital bed.  When it came time for her to die the hospital staff prevented her partner from entering her hospital room and sitting with her at the end of her life because she was not the “spouse”.  Our friend died alone. Her partner sat outside in the corridor, prevented from being with her. She continues to suffer great distress that her life-time partner died without her comfort and without knowing she was there with her”.

This underscores the importance of consulting a lawyer and preparing documents in advance.

Guardianship Act:

The Guardianship Act 1987 (NSW) provides a hierarchy for choosing the “person responsible” for medical decisions. Recognizing lesbians in a “close, continuing relationship” as de facto partners under this act is pivotal. However, gaps in awareness among medical staff may necessitate legal intervention.

Same sex individuals in a “close, continuing relationship” qualify as de facto partners for the purposes of the Guardianship Act 1987.  However many workers in the medical field are unaware of the changes to the law which recognise same-sex couples. Consider appointing your partner as a Power of Attorney and/or Enduring Guardian, particularly if you don’t cohabit. Relationship registration can automatically recognize de facto partnership status, providing higher priority under the Guardianship Act. For those with children, parental responsibility determines the “person responsible.”

Power of Attorney

A Power of Attorney empowers someone to make financial decisions on your behalf. It’s wise to appoint someone understanding of your wishes, and registering the Power of Attorney may be necessary for property-related decisions.

For continued operation after losing capacity, consider an Enduring Power of Attorney. The decision-making scope and nominated substitute Attorney require careful consideration.

Enduring Guardian

In the event of incapacity, an Enduring Guardian makes decisions concerning health and lifestyle, excluding financial matters. Selection criteria for this role should prioritize understanding your wishes and values.

Wills

A will is a legal instrument outlining the posthumous distribution of your property and possessions, collectively referred to as your “estate.” Engaging a lawyer to draft your will is paramount, ensuring legal validity and accurate representation of your wishes. Particularly crucial for those with dependent family or children, a valid will safeguards their provision upon your demise.

While it’s advisable for all adults to have a will, its significance intensifies with life milestones, such as entering a de facto relationship, pregnancy, and parenthood. The cost of drafting a will varies based on complexity, ranging from $200 to $10,000. Opting for a lawyer over a “do it yourself” kit is vital to grasp and align the document with your wishes.

For a will’s validity, it generally needs to be in writing, signed, and witnessed by two others who also sign. Appointing an Executor and Trustee is a subsequent step, typically performed by the same person, though alternatives and joint appointments are possible.

The Executor manages probate, settles outstanding debts, and allocates assets as per your will. Selecting a trustworthy Executor is paramount, considering the pivotal role in executing your wishes. Trustee responsibilities include administering any trusts established in your will, with testamentary trusts offering a tax-effective method to direct assets or income for children, commonly applied if under eighteen.

Considering a clause defining your relationship with your partner strengthens your will’s integrity, dissuading challenges. Instances within the same sex community emphasize the tragic consequences of not having a will or overlooking such clauses, resulting in undesired inheritance scenarios.

Including a “Testamentary Guardian” in your will is particularly advantageous for gay and lesbian individuals, anticipating scenarios involving a birth mother’s demise, legal parent complexities, known donors, or strained extended family relationships. While the Federal Circuit and Family Court retains authority, prudent preparation can potentially spare children and partners from the anguish of custody battles.

Simultaneously drafting your will prompts consideration of superannuation benefits, which are not part of your estate. Opting for direct payment to your partner or children, rather than routing through your estate, may offer tax advantages. A binding nomination guides your superannuation fund’s trustee, and regular updates are crucial. Nominating dependents or your estate allows control over the distribution of superannuation benefits, with potential use for education and living expenses.

Probate, usually granted by a court before estate distribution, precedes considerations for will updates, necessitated by events like marriage, divorce, separation, or the birth of children.

Consulting a solicitor ensures your will aligns with your family structure, while seeking tax advice optimizes its tax-effectiveness for beneficiaries. This comprehensive approach safeguards your wishes, financial interests, and the well-being of your loved ones.

Dying Without a Will

In the event of your demise without a will, the legal system terms this as dying “intestate.” This circumstance poses several challenges, especially if you have children. Having a will is strongly advisable, as it ensures that your property is distributed according to your intentions, providing care for your children and/or partner without subjecting them to protracted court battles, exorbitant legal fees, and undue stress.

The absence of a will at the time of your death may lead to complications during the administration of your estate. Your assets may not be allocated as you desired, and without specific instructions, your estate could be divided based on a government formula. This process might not align with your wishes and could result in substantial costs and delays for your family, partner, and children. Additionally, proving a relationship at the time of death might be necessary for your partner to inherit your assets, creating potential challenges for children, especially if you’re not their legal parent or have children from different relationships.

Creating a will involves an investment of time, energy, and money. Despite these commitments, I highly recommend this investment for all parties involved, considering the potential complications that may arise in the absence of a will.

Administering your estate if you have a Will

In the event of your death with a valid Will, the recipients of your estate are those whom you designate in the will. If you specify your partner and/or children to inherit your estate, including specific properties or gifts, they should receive their entitled shares as per your will.

While you have the freedom to allocate your assets as you see fit, you bear the responsibility to adequately provide for your de facto partner, children, and any other dependents. This obligation, while not mandated by law, has been recognized by the Supreme Court in various cases as a “moral duty” towards ensuring adequate provision for family members.

Failure to meet this moral duty could render your family members eligible to file a claim on your estate, known as a family provision claim.

Family Provision Claims

Family provision claims arise when individuals feel inadequately provided for in a Will. Surviving spouses, de facto partners, or children can apply, emphasizing the need to balance bequests and family obligations.

Investing time and resources into creating a will is a prudent decision, considering the potential complications for those left behind. Even with the investment involved, the benefits far outweigh the potential problems arising from the absence of a will.

Summary:

Understanding legal frameworks and planning for unexpected scenarios is essential for the LGBTQ+ community, ensuring that the rights and wishes of individuals are respected and protected. From Guardianship Acts to Powers of Attorney, Enduring Guardians, and wills, these legal instruments offer safeguards and clarity in times of uncertainty. Consulting with legal professionals and staying informed about legislative changes is crucial for securing the well-being of individuals and their families.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.