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Can you have too much of a good thing?

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As with most things in life – never!

And so it is with Wills and Enduring Powers of Attorney.

You can have more than one Will or Enduring Power of Attorney existing happily together all at the same time. How can that be? It’s not because we love our lawyer, we’re legally greedy or just can’t get enough of these documents. It’s because you can have more than one and because there can be very good reasons to do so.

More than one Will

For those of us who live on this large island and have all our assets here, you should only have one Will no matter which state or territory you live in. It will generally be valid everywhere in this country.

However, there are people, particularly immigrants, who live here who have assets in another country. Each country will have different laws and rules about Wills. As a result it may sometimes be prudent to do a Will for that particularly country as well as a Will in this country. That will require the Will you make here to state specifically that it only applies to your Australian assets not any overseas assets.

More than one Enduring Power of Attorney (EPOA)

Because, generally speaking, every State and Territory now recognises EPOA’s done in a different State or Territory, you can now have just one which will apply everywhere in this country.

So why would you want to have more than one? Here’s a reason:

  • You are in a ‘blended family’ situation
  • As is common, you have made a Will giving everything to the children from your first marriage. You have also made a binding death benefit nomination giving all your super when you die to your second spouse. This is often how blended couples seek to achieve some fairness between ‘competing interests’ as they are called
  • You are about to do an EPOA – who to appoint?
  • Arguably, if you lose capacity to make your own decisions, anyone you appoint could also be able to make decisions about your super death benefit nomination as well as the rest of your financial affairs and, in doing so, could wreck your carefully structured estate plan – assets to the kids, super to the second spouse

One possible way to address this potential is to make two EPOA documents as follows:

EPOA No 1

  • Appoint some of your kids from your first marriage in one EPOA being careful to ensure that it excludes any power in relation to your super death benefit.

EPOA No 2

  • Appoint your second spouse in a separate EPOA and limit their power to just making decisions in relation to your super death benefit.

Many of us in the ‘blended’ family are always anxious to avoid the legacy of implosion when we die. We don’t often think about leaving a similar legacy when we are still alive but unable to make our own decisions or control our destiny.

Food for thought, if not, dare I say it, advice.

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