Estate and succession planning has always been an important consideration for individuals planning how to transition assets to the next generation and preserve their legacy. However, with the COVID-19 pandemic, it has perhaps become even more important to plan for our futures. Social isolation has also created unforeseen barriers which may require some forward planning to overcome. In this pod cast Sally Nicholes, Managing Partner of Nicholes Family Lawyers is joined by Malcolm Campbell, Principal Lawyer at Nicholas O’Donohue & Co to discuss Wills, Estate Planning and Powers of Attorney in the context of the COVID-19 pandemic. It’s not all serious though, the two do share a good laugh!
Welcome everyone to the Nichols Family Lawyers podcast. I’m Sally Nicholes, managing partner at Nicholes Family Lawyers. My guest today joining me for this podcast is Malcolm Campbell. Malcolm is an accredited specialist in wills and estates law and a principal lawyer at Nicholas O’Donohue and Co. Malcolm has special expertise in wills, estate, and succession planning to name just a few areas of expertise. The state in succession planning has always been an important consideration of individuals. That is planning how to transition assets including trust and business entities to the next generation and essentially helping individuals preserve their legacy. However, with the coronavirus pandemic, it has perhaps become even more important to plan for our futures in such a unprecedented time. In addition social isolation has created out the same barriers, which may require some form of planning to overcome. On that point, we’ll speak more about powers of attorney later this podcast. So, thank you Malcolm for joining me.
Thank you, Sally for having me.
Perhaps you can begin by explaining to our listeners what estate and succession planning is.
Well, it’s very important not only in these different COVID-19 pandemic times, but generally all the time. Every person should think about their estate and their succession plan in life and in business. I know that inquiries have actually increased because people are nervous. Wanting to do a will or a power of attorney or think about things and so yes, I’ve certainly been busy.
I can imagine and who should be thinking about updating their will and estate succession planning particularly at this time?
Every person should be considering to update their wills and powers of attorney. They should be reviewed every couple of years. But even now in these different times with the COVID-19 pandemic, you should be thinking about looking at your will and your powers of attorney and also with general life events that happen. Marriage, divorce, births deaths, and other things that happen in one’s life. You should always be burying it in mind. So, get a copy from your lawyer if you’ve got one, or if you don’t have a lawyer and you’ve got a copy at home, check the copy at home. So, get a copy of your will or your power of attorney from your lawyer and review it. If you don’t have one with your lawyer, then if you’ve got at home, have a look at it at home. Of course if it’s at home, it should in a safe or somewhere secure. Otherwise, deposit it with the bank or with a lawyer,
I was thinking, Malcolm, some of the really draconian stage 3 implications that we’re experiencing here also included who should actually attend a funeral. Is that something that people do actually put in a will?
People put a little bit of information about their funerals. Some put a lot of detail. I’ve had someone who said he wanted to be buried with his favorite football jumper and his ABBA CDs. Others just mentioned I want to be cremated or buried. With the current circumstance, it’s very difficult with funerals because you can only have a maximum of 10 people and so it’s very hard to decide who’s on the guest list, but a lot of people are saying, “Well, we’ll deal with a cremation or burial now, but we’ll do a memorial later.” I was involved in one actually where I was hosting a memorial and then of course they changed the laws and so we had to cancel it because the venue got closed. It was at a golf club and that got closed, its function area. We called it off and we will just have to hold it later and I think a lot of people are planning to do that. They’re having to bury or cremate their loved ones now and then have the memorial later. I believe you can get exemptions because in that situation you want the wife and 11 children to at least go. It’s very upsetting families in these times, but it’s also interesting how we deal with signing documents because I’m used to people coming into the office, we sign it and I make sure it’s done correctly in accordance with the laws of the Wills Acts or the Powers of Attorney Act. Now we’re having to send them out to people with very clear instructions of how to sign. I’m advising people the best thing to do is actually just go to the police station because one of the weaknesses has to be, for powers of attorney at least, you have to have a qualified witness, but for wills that can be just two independent people. If you go to the police station, one of the witnesses has to be above the level of a sergeant. So, you go to the police station and get it done there. You’re not breaking any laws. You’re going into the police station place of work for the police and two witnesses could be there for you. I’m just reminding people though that everyone uses the same pen. Although the law doesn’t say that you have to use the same pen. I know that when documents get witnessed at the police station that every police man or woman pulls their pen out of their pocket and then puts it back after they’ve signed. Of course, different colored pens can give the impression that the documents were not signed at the same time. I’m reminding clients that make sure everyone uses the same pen. So that’s how we’re handling it. I did do one home visit for an elderly client just before they said you couldn’t have crowds of two, before then you could, and so I did do a home visit, took my husband with me as the second witness. We just witnessed this old lady’s will and they lived locally so it was okay, but it’s not something I’m doing otherwise. We’re just sending documents out and I’m operating from home. I have a full office in my bedroom actually, which is where the Wi-Fi’s the strongest. So I’m in the bedroom, I’ve got a full desk. I’ve got everything I need. I’ve got stamps. I’ve got my certification stamps. I’ve got stapling. I’ve got sticky tape. I’ve got paper. I’ve got envelopes. I’ve got express post envelopes, The lot. So I’m not operating. I know it’s quite funny. I feel like I’m on a castle doing everything and operating here from home. The thing I running out most Sally which you’ll find funny is sign here stickers because you’re putting them on every document you’re sending people at. So I went into the office. got every single bit of sign here stickers from the cupboards in our stationary cabin. When I run out, I’ll just go to office and get some. We’re still allowed to go to our office because our building still open. As a firm, we think it’s appropriate that for staff and for clients’ health and safety, that we not be physically in the office. Also, I need to be able to access clients wills and powers of attorney. The original one so I can make certified copies if people are needing them because as people do, they do need to access powers of attorney for using for their parents if their parents have lost capacity. I still have that access and I can go in there, get the documents and certify them. That’s very important. I rang the law institute to find out more what the situation was there. But of course, if we went to stage 4, which is lock down, that means no one can leave their homes. It would mean that for that sort of situation, that couldn’t occur. Possibly we couldn’t do any probates because you need an original will to be lodged at the Supreme Court for probate and it might mean managing of estates. Administration of estates would have to be on hold until lock down was over but I don’t think we’re going to go to lock down. I think that with the country and this state is managing things as they are. We may be in these circumstances for a bit longer because the state of emergency got extended until mid-May. I’m imagining it’s going to go to May and even longer, but I don’t think it’s going to go that next step to lock down, not like Europe.
Okay, we’re talking about powers of attorney. For the benefits of our listeners, what is a power of attorney and in what circumstances might a power of attorney be necessary?
Sure, Sally. There are two types of powers of attorney. There is a financial and personal power of attorney, and then there’s a medical one which is called an appointment of medical treatment decision maker. Now, the medical treatment decision maker power of attorney is only used if you’re unable to make your own medical decisions when you’re in the hospital. So if you’re conscious, you can talk to the doctor, you can sign your name, you can understand what they’re talking about. You make your own decisions. But if you’re not able to, then you need to have a medical treatment decision maker. This document is important to have done whilst you have capacity. When you’ve lost capacity, then the doctor needs to confirm that you haven’t got capacity and then this document can be used. You can appoint one person and one spare. You cannot have more than one person. You cannot have joint medical treatment decision makers. It’s only one and a spare. So that’s one type. The other type is the financial and personal power of attorney and that’s for everything else that you deal with your money and any contracts you’ve entered into. It also deals with your personal affairs. Dealing with the fact that if you lost capacity, then someone who you appoint can be the one that signs you into aged care or something like that. So that one’s quite a powerful document and that one can be applicable from when it’s signed up until when you die, or it can be applicable if only when you lose capacity. Sometimes people might want someone to be their power of attorney if they’ve gone on a six-month round-the-world cruise or something. It can be applicable whilst you’ve got capacity, but in certain circumstances. We all know that cruising at the moment is a thing that nobody wants.
It’s a big no, no. Yes.
Yes big no, no. So that’s the two powers of attorney that are used these days. Of course they’re enduring and so they’re applicable whether you’ve got capacity or not. Well, the financial one is anyway. The medical ones only when you’ve lost capacity. There’s also another type of power of attorney you can use which is for company directors who can authorize other persons to give effect to their decisions in relation to the operation of a company. They don’t happen very often, but they are there. You actually can give someone a specific power of attorney just relating to property sales and property purchases. So if you’re going away and it’s documents had to be signed during the settlement process then someone can do that for you as well. They’re less and less used these days now because a lot of conveyancing is electronic through the PEXA platform, but there still are some very couple of paper transactions that are still done, but not many.
What do you think, I mean, for the elderly at the moment. I was talking to a colleague the other day, and she was having to sit and socially isolate with her 90 year old parents to talk about their affairs and powers of attorney. She was five meters away from them in their garage with rugs around them and what their concerns were and about powers of attorney in terms, you talked about going and visiting people and elderly people aren’t really okay with Zoom as we are all technology. So really at the moment if people are listening and want to help their elderly parents, what do you think is the best recommendation that you would have just to suggest that they actually put them on the phone to someone like yourself, so you can talk them through these options directly, is probably the best thing to do?
Yes, the telephone. I’m having a lot of teleconferences and for people with au fait with technology, we’re using Zoom. I had one the other day where I had a foreign language speaker and so we actually had an interpreter as well on the Zoom, but the interpreter’s audio wasn’t working. So my assistant rang the interpreter and had her on speakerphone through my assistant’s Zoom. So we managed to complete the circle to get the translation done. These are the things we have to do these days. The message got across and the client who was a not a native English speaker, was able to give instructions and be explained terms.
That’s a really important point. We’ve had some conferences with interpreters and we’ve done that through teleconference too. It’s so important for the elderly people to be able to do that. Are there any other key messages that you’d like to give to people before we conclude the podcast?
Just reiterate the first message that people should review their documents and they should update them as necessary. In these uncertain times, it’s certainly a time that they should be reviewing their documents to keep them current because as we said, some people can’t get out there and help people. I find that especially with parents, they are appointing children. The geographical closeness is often very important to consider. It’s probably best to appoint a child that is living in Melbourne if you live in Melbourne, rather than your other child that lives in Queensland because they are at least going to be able to help you more when they’re closer to you physically than when they’re interstate, especially with travel restrictions and borders being closed and all that sort of stuff. Think about what you feel is best and happy to speak to anybody that has any queries about estate planning, wills and powers of attorney.
Thank you so much, Malcolm. Incredibly informative, as usual. You’re very kind empathetic to anybody we send to you so thank you so much for participating. I’m sure everyone would have got a lot out of this podcast. If anyone can see you on your Hawaiian shirt, I think my preference would be to Zoom you anytime. So again, thank you very much for joining us and I’m sure there will be some future podcasts that you’re participating. We are actually looking at hopefully having a webinar on looking at the elderly in particular. Hopefully we’ll get the sensitive issue of elder abuse and how we can actually support the elderly at the moment particularly in lock down. It would be lovely to have you on that panel when we look at that issue later on in this series. So thank you very much for that, Malcolm.
You’re welcome Sally.
Nicholas O’Donohue & Co: www.nodco.com.au/
Esmart Schools: www.esmart.org.au/
Kids Helpline: A free, private and confidential telephone counselling service – 1800 55 1800 or kidshelpline.com.au/
Parent line: A state-wide counselling and support service for all Victorian parents – 13 22 89 or 1300 272 736
Safe Steps: A domestic violence hotline service for women and children – 1800 015 188 www.safesteps.org.au/
WIRE Helpline: A free support, referral, and information for all Victorian women (non-binary and gender diverse inclusive) – 1300 134 130 www.wire.org.au/
Relationship Space: An online program to help parents manage divorce – www.relationshipspace.com.au
Online Family Violence Intervention Order Application – fvio.mcv.vic.gov.au
Relationships Australia: www.relationships.org.au/
Disclaimer: Nicholes Family Lawyers intends the information provided in this podcast as general information only, please contact Nicholes Family lawyers if you require specific information and advise in relation to any family law matter.