The rate of relationship change in later life is high. The change is sometimes voluntary, sometimes not. Spouses become incapable, can be separated by illness, die, separate, divorce, re-partner, and remarry.
Independent and objective professional advice is crucial during this often emotional and burdensome time of transition. This independence and objectivity will help you filter through the well-meaning but often misguided advice of family and friends – the bush, pub and bbq lawyers.
And it’s a time when it should be all about you. It’s a time when it’s crucial to properly assess and understand your own objectives as well as whether and, if so, then how those objectives can be properly and effectively achieved.
Just a few of the common things that need to be considered are: do you have an Enduring Power of Attorney (EPA), Advance Health Directive and Will; if not then you should make one; if you have one then do you know how the relationship change affects yours; how does the relationship change affect government pensions or benefits and your financial affairs generally; do you want to or need to move house and, if so, then what do you know about the many available accommodation options, how they work and which best suits you.
Those are just a few of the common issues. And if you don’t do things for yourself, here are a few of the things that the law might sometimes do automatically.
If you make an EPA then marry or enter into a civil partnership the EPA is revoked except to the extent that it might have appointed your new spouse or partner. The rest can be lost.
If you make an EPA appointing a spouse by marriage or a registered civil partner then you divorce or terminate the partnership, the EPA is revoked to the extent that it appoints that spouse or partner. The rest can remain valid.
Interestingly, the ending of a de facto relationship doesn’t affect an EPA. If your EPA appoints a de facto spouse and the relationship ends, the de facto is still your Attorney. Hence, de facto’s should consider specifying when a spouse’s appointment should end.
Marriage or registration of a civil partnership usually revokes a Will. However, any gifts to the spouse or partner under the Will and the parts that appoint the spouse or partner to certain roles remain valid if the marriage or partnership subsists at the date of death.
Divorce, termination of a civil partnership or the ending of a de facto relationship doesn’t revoke a Will. However, it does revoke any gift to the former spouse or partner as well as some of the roles that the spouse or partner was appointed to under the Will.
Importantly, the simple act of separation from a spouse or partner doesn’t affect an EPA of Will. Hence, in the case of a separation, it’s crucial to obtain advice and act as early and as comprehensively as your circumstances allow.
In fact, in all cases of relationship change it’s important to obtain advice and act as early and as comprehensively as your circumstances allow.