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by Stephanie Paxton-Penman – Paxton-Penman barristers & solicitors
It has often been said that the most painful goodbyes are the ones that are never said and never explained, and in my experience, this occurs when people fail to adequately consider and discuss what is right for them when they are facing the end of their life.
I am always surprised by people’s lack of insight into the fact that a Will (or lack of) is the last message you leave. Poorly drafted Wills, lack of consideration, dying with no Will are all a recipe for conflict among families. This lack of insight leads to unnecessary stress, anxiety and confusion – not to mention the unnecessary costs of litigation and lawyers. We have all read about cases that have been dragged through the courts for years. These are the ones with a lot of money. What we don’t read about is the normal family and the costs to them financially when they are dragged through the courts for years because someone is not happy. These scenarios destroy families and are easily prevented by taking the time to sit down and discuss with family (or their lawyer if they want to keep it confidential) what they want to happen and making sure their wishes are recorded.
I am also surprised by the number of people that do not understand the difference between an enduring Power of Attorney and a Will. A Will deals with property when someone has died. An enduring Power of Attorney deals with property and personal care and welfare when someone is alive. A Power of Attorney can be invoked when the donor – the person who is appointing someone else to be their attorney – lacks capacity. This could happen if they have had a stroke or a head injury, or sometimes it can be invoked when the donor has capacity but for some other reason is not in a position to make decisions around their property.
Both a Will and Enduring Power of Attorney are critical and without them there is the potential for litigation, cost, stress and angst. Often people leave it too late to sign these critical documents, often people cannot cope with thinking about what would happen if they lacked capacity or died, others think that it is too complicated. None of these reasons make for happy families. All of these reasons result in conflict and cost. And all of them occur when the person is unable to actually communicate their wishes.
So, I ask that you reflect on your own story and your own life and ask yourself are you going to be someone “who never said and never explained” or are you going to be someone who ensures that when they finally leave their loved ones, they leave a legacy of love not litigation?
