JUNE 2024 NEWSLETTER
Wills & Enduring Powers of Attorney
At C & F Legal we are experienced in preparing Wills and Enduring Powers of Attorney.
Estate Planning: do you really need it?
Having a plan in place for when you are no longer able to take care of your own affairs gives you and your family peace of mind.
There are several ways in which you can ensure that you and your family are taken care of, if and when the time comes. Enduring Powers of Attorney (“EPAs”) give someone the right to make decisions and act on your behalf while you are living, whereas a Will ensures your affairs can be administered in the manner you wish after you pass away.
Enduring Powers of Attorney
There are two types of EPAs – Property (being your personal property matters, such as your bank accounts, home, insurances, and possessions), and Personal Care & Welfare (being any medical and wellbeing matters). You (the Donor) appoint attorney(s) to act in these matters on your behalf. There are strict requirements around how your attorneys must act, and it must always be in your best interests.
The Property EPA offers flexibility in terms of when it is invoked – it can be while you are mentally capable, or only if you lose your mental capacity. You can have more than one attorney, and they may act for you in your property affairs as and when required. For example, if you have a Property EPA that is immediately effective and you are travelling overseas, your attorney can deal with matters at home on your behalf. If you lose your mental capacity, then your Property attorney would work with your Welfare attorney to put in place and pay for care facilities.
The Welfare EPA only comes into effect if you lose your mental capacity, and it gives your attorney the right to make decisions around your care requirements, medications or medical procedures, and any other matter relating to your physical and mental wellbeing. Your attorney cannot refuse any standard medical treatment for you. Your attorney needs to be someone you trust implicitly to act in your best interests.
There is an ability to restrict how your attorneys can act for you, and there is the ability to require your attorneys to provide information to, or involve others in the decision-making processes, such as your family or specified professionals. At all times your attorney is required to involve you in the decision making as far as is possible, even if you cannot fully comprehend the consequences, and they are to act as you would act if you were able.
EPAs cannot be put in place after you lose your mental capacity. In these circumstances your family would have to apply to the High Court to have welfare guardians put in place for you. This is both costly and time consuming, and would place added stress on you and your loved ones, when your care and welfare should be their immediate priority. Preparing EPAs is straightforward, but a prescribed form must be used and it requires certification from an authorised person. We have many years of experience in preparing and invoking EPAs, and we see daily the positive impact this has on families and individuals.
Wills
Did you know nearly half of all New Zealander’s don’t have a Will? And two-thirds of parents don’t have alternative care arrangements in place for their children?
What happens if you die without a Will? It becomes the responsibility of your family to apply for the rights to administer your estate, and your assets are divided according to legal provisions. For example, your spouse or de facto partner is entitled to 50% of your estate, with the rest being divided among your children.
If you have separated from your partner but haven’t updated your Will, or if you have children from a previous relationship, then your estate administration may not be as straight forward as you might think. The costs to your estate, your spouse and your children when trying to unravel the complexities of your estate can be significant. However, a good Will can eliminate most of this.
A Will does not need to be complicated – you need to appoint an executor (the person who will administer your estate) and decide who will benefit from your assets. Usually people will appoint their family members as their executors and beneficiaries, and this is entirely appropriate. However, if you are without close family, or cannot be sure that your wishes will be carried out, a trusted friend or even a solicitor can be appointed to act as the executor of your estate (they cannot benefit unless you wish them to).
It is a good idea to include a few extra provisions in order to protect your assets, and your executor, so that your estate can be administered as you wish. You may have other factors to consider depending on your lifestyle and life stage. If you have minor children, it is important that you provide for their guardianship after you pass. If you have a family or business trust then you need to provide for its continued operation after you pass, even if it is to be wound up.
Your Will is a living document, which means it can be updated and amended whenever required. We recommend reviewing your Will every five years – it may not need amending, but it is important to ensure that it is still operative and is up-to-date with recent law changes. If an executor or beneficiary has predeceased you, is there provision for someone else to take their place? Do you still own the assets you have distributed in your existing Will? If it has been a while since you checked your Will, consider this a prompt to get it out and check it out.
Thinking of selling? Common Conveyancing Hiccups – Consent Issues
We are seeing a lot of contracts delayed due to building consent issues. Disputes around whether works have required consent (i.e. removing a wall, and whether it is load bearing), what type of consent or certification is required, then delays in obtaining retrospective approval from the local territorial authorities are holding up settlements by up to 9 months.
While conditions in the Agreement for Sale & Purchase around the acceptance of potentially unconsented works used to suffice, banks are much more risk-averse and can be reluctant to lend if these issues arise. More and more frequently banks are requesting copies of building reports, and either denying finance outright or providing only conditional approval until such time as all works have been completed and signed off by the relevant statutory authority.
Where post-work certification is required, delays at Council mean getting those certificates (Certificate of Acceptance or Certificate of Exemption) are taking between 6-8 months. Most finance providers then require copies of those certificates before they will confirm an unconditional offer of finance, which of course delays settlement. This has a flow-on effect not only in terms of timeframes for the vendor completing their on-purchase, which may result in their contract being cancelled for a better (more timely) offer, but also increased costs to all parties.
If you think there are works on your property that may have required consent (and this does not only apply to works you have undertaken), it is worthwhile getting a builder and/or engineer to inspect the dwelling and prepare a report that your agent can then pass on to prospective purchasers. If there is any suggestion that those works should have retrospective consent, then we highly recommend getting the process underway with Council sooner rather than later to make sure any sale is not held up. If you have any questions in this regard, please feel free to get in touch with us to discuss the matter and we can guide you through the next steps to a successful sale.
Introducing Kayla McLellan Solicitor (Conveyancing)
Kayla graduated from the University of Canterbury in 2019 before starting her career at a provincial firm in Otago. Here, she gained exposure to various aspects of law. Kayla attended High School in Nelson and returned to the region in the beginning of 2024 to be closer to family.
Since joining C & F Legal, Kayla has been working in the property and commercial team. This role includes a large variety of matters, such as residential conveyancing, leases, wills, enduring powers of attorney, trusts, and relationship property.
Outside of work, Kayla enjoys reading, playing hockey and spending time with her partner and pets.
The information contained in this article is for general informational purposes only. The content of this article is not intended as legal advice and should not be relied upon as such. Please get in touch with us if you require legal advice in relation to any matter.