Who Can Get a Copy of My Will?

Writing and signing a will is an important process to ensure your assets and belongings are distributed in line with your wishes after you’re gone, and often these choices can be very personal or sensitive. Sometimes, a will sets out gifts or arrangements that might surprise or upset friends or family members. So, who actually has a right to see your will?

 

While You’re Still Alive

As long as you’re alive, you are the only person who’s entitled to see or have a copy of your will. If your will is held by your lawyer for safekeeping, they can only provide a copy to you—not to anyone else, unless you give clear permission. This rule is in place to make sure you can make your own decisions about your will, without worrying about pressure from others.

You don’t have to share details of your will with anyone before you die, and some people prefer to keep it completely private. That’s entirely your choice.

Your executor is not entitled to a copy of your will, but you should advise them of where your will is located so it can be found after your passing.

An exception exists if you have appointed an enduring Power of Attorney, and you lose the capacity to make your own decisions. That attorney might need to see your will to make certain decisions, like decisions to sell property that’s mentioned in the will. In these cases, they’re only allowed to use the information for looking after your interests—not for passing on to anyone else.

 

After You’ve Passed Away

Once you pass away, the Succession Act 2006 sets out who can access your will. Generally, those entitled include:

  • Anyone named in the will as a beneficiary;
  • Your spouse, children, and dependants;
  • Anyone who has a good reason to believe they might have a claim on your estate (for example, through a family provision claim).

If someone thinks they might have been left something but finds they’ve been left out, being able to view the will helps them decide if they want to explore their legal options. This doesn’t mean your wishes will necessarily be changed, but everyone with a reasonable interest gets to know what was decided.

 

A Balance of Privacy and Fairness

Rules around who can access your will are designed to protect your privacy while you’re alive, so you can make the choices you want, while still ensuring openness once your estate is being administered after you pass away. This way, your final wishes are respected and you are protected from criticism during your lifetime, but anyone with a real interest in your estate has at least some transparency after your death.

Ready to make a will? For advice on your Will and keeping its contents confidential, get in touch with us today.

 

Enduring Guardianship and Advance Care Directive – What’s the Difference

Enduring Guardianship documents and an Advanced Care Directives are similar legal documents which ensure that you have autonomy to make decisions about future health care, while you have capacity to do so, in anticipation of a time where you may not be able to make those decisions yourself. They’re important tools to ensure that serious medical treatment can be delivered with dignity and with your own values in mind.

 

How are these documents different and how do they operate?

 

 

Enduring Guardianship

An Enduring Guardianship enables you to appoint a trusted family member or friend to make health care decisions in your place should you become incapacitated. It is a significant legal document, and the decision to appoint someone as your guardian should not be made lightly.

In this circumstance, a guardian is able to make health decisions in your place, and is guided by the terms of their appointment included in the legal documents that you sign prior to losing capacity. You can limit a guardian’s power, or explicitly prohibit them granting permission for particular procedures.

A guardian is able to consent on your behalf to a range of health and care decisions, including what medicines you receive, to consent to most surgeries and to decide whether you require residential care. These powers are only activated in a circumstance where you are unable to make these decisions yourself, such as through loss of capacity through disability, dementia, injury or severe mental health crises.

 

Advanced Care Directive

Separate to the appointment of an Enduring Guardian, an Advanced Care Directive is a record of your specific instructions as to what healthcare you wish to receive. Sometimes, these are called ‘living wills.’

An Advanced Care Directive is a direct expression of your consent. Generally prepared with a medical practitioner, an Advanced Care Directive goes through specific procedures, treatments and medications and indicates your consent to each of these factors individually. This can be done in anticipation of the complications of a specific illness, or with a view to palliative care being required.

A potential limitation of an Advanced Care Directive is that it may not anticipate the exact circumstances which arise after you have lost capacity, which results in there being no prior consent for your treating medical professionals to rely upon, and challenges identifying who can provide consent on your behalf.

 

 

How did these documents interact?

The most powerful form of consent to a medical procedure is the consent of the patient themself. Therefore, where a properly executed Advanced Care Directive exists, the directions outlined in this document will prevail over the decision of an appointed Enduring Guardian.

The role of Enduring Guardian in this circumstance would be to step in where the Advanced Care Directive is unclear or incorrectly executed, or does not contain appropriate instructions for the circumstances which have arisen.

In cases of serious illness, Advanced Care Directive can be used by an Enduring Guardian to guide their decisions on your behalf.

 

If you wish to appoint an Enduring Guardian, get in touch with us today. The NSW Guide to preparing an Advance Care Directives can be found here.