Where clients do not have assets in companies or held in trusts, in many cases their estate planning intentions can be dealt with by a binding death nomination (if they have a superannuation interest) and a will, with other useful documents being an enduring power of attorney and an advance health directive.

A rough guide to the function of these documents is:

Your will:

1. Advisable for it to be drawn by a lawyer;
2. Usually requires two witnesses who will not benefit but they don’t need to be qualified;
3. Comes into operation if you die;
4. Appoints a person to manage it (the executor);
5. Sets out your wishes with the distribution of your estate to recipients (the beneficiaries);
6. Can create discretionary or other trusts to come into effect on your death.
7. For articles to assist in preparing to draw your will, see here https://www.qbmlawyers.com.au/wills-estates-lawyers-gold-coast/writing-a-will/

Binding death nomination (“BDN”):

1. Many industry funds have their own format for a BDN for their fund and assist with completion, but it is advisable to have it checked as part of the estate planning process;
2. Usually requires two witnesses who will not benefit but they don’t need to be qualified;
3. Applies only in relation to interests in superannuation funds and does not deal with other estate assets;
4. Can bind the trustee of the fund to pay superannuation payments out on your passing in a certain way;
5. May be limited in duration (lapsing) and have to be renewed, or r non lapsing, depending on the fund;
6. Can only provide for payment in limited ways, for example to a spouse, child (of the fund member), dependent of the fund member, or to the estate to be dealt with by the will of the fund member (the legal personal representative);
7. In the case of a fund in pension mode, can deal with your pension (a reversionary pension).

Enduring power of attorney:

1. Can be completed without a lawyer but needs a qualified witness;
2. Is generally in two parts, the financial power of attorney and the health power of attorney;
3. The proposed attorneys sign to confirm consent;
4. Only operates while you are alive;
5. Appoints a person or persons to carry out either or both of financial matters, or personal/health matters for you;
6. For health matters can only operate if and while you don’t have capacity to make decisions for yourself;
7. For financial matters can start at other times;
8. Can appoint different people for the financial power, and for the personal/health powers;
9. Can set out guidance for the attorney in both financial and health matters, but not concerning end of life treatment;
10. The Queensland Government guide for enduring powers of attorney can be found here https://www.publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive-forms/resource/17942707-4c02-4c98-af31-48b8ebcb957e

Advance Health Directive:

1. Is in two parts, the Health Directive and the power of attorney for health matters;
2. The Health Directive sets out your wishes with respect of your health care, including guidance and directions on life sustaining treatment;
3. The Health Directive has to be certified by a doctor who has discussed your directions with you;
4. The power of attorney for health matters can be included which would potentially revoke the power of attorney in your enduring power of attorney;
5. You don’t have to include the power of attorney part if you already have one;
6. Otherwise it is signed similar to an enduring power of attorney;
7. The Queensland Government guide for advance health directives can be found here https://www.publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive-forms/resource/e904421c-b1e7-4f43-a918-474ae8c496fa

Please contact us if you would like to discuss your estate planning needs. For current pricing on these services, please call Jessica Murray or email jessicam@qbmlaw.com.au