Divorce file

Separating from your partner? You need to update your estate planning documents now

Andrew Aitken, Jana Sosner and Camille Broadhurst

Relationship breakdown and the subsequent stress over division of property and/or parenting arrangements often leaves reviewing and updating your Will, Power of Attorney and Appointment of Enduring Guardianship in the “I’ll deal with that later…” basket.

As tempting as it may be to leave until “later”, the time to update your estate documents (Will, Power of Attorney, Appointment of Enduring Guardian and Super Nomination) as soon as you have separated.

Many couples, married or otherwise, appoint each other as their Enduring Attorney and Guardian. Although this is not controversial while the couples stay together, many people would not want their former partner from whom they have separated (or divorced) to continue making financial, legal or medical decisions on their behalf.

In New South Wales, Victoria, Tasmania, Western Australia and South Australia, divorce and/or separation do not revoke Powers of Attorney or Appointments of Enduring Guardian documents.

An Attorney can make financial, business and legal decisions on your behalf and bind you to those decisions. Your former partner or ex-spouse could continue making financial and legal decisions on your behalf, including accessing your bank accounts, taking out loans or credit cards in your name and buying and selling assets, including real estate.

A Guardian makes medical (including end of life decisions), health and lifestyle (including where you live) decisions if you lack capacity. Your former partner or ex-spouse could also make these decisions for you, if you were to lose capacity, permanently or temporarily, for example if you were in a car accident.

This applies even if you subsequently re-marry or enter into a de facto relationship. Your ex-spouse will have the power to make decisions on your behalf, but your current partner or spouse will not!

In Queensland and Australian Capital Territory, Powers of Attorney are automatically revoked on divorce, but not upon separation. However, those dealing with an Attorney (such as your bank) may not know you are divorced.

It is essential to revoke the Power of Attorney and Appointment of Enduring Guardians as soon as you decide your former partner or spouse should not be making decisions for your and appoint the people who you want to make those decisions on your behalf, should the need arise.

You should also take this opportunity to update your Will and Superannuation Death Benefit Nomination to ensure that your estate passes to your preferred beneficiaries, and not your former partner or ex-spouse.

For more information on updating your estate planing documents please do not hesitate to contact Andrew Aitken or Ilana Kacev.

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