Locked Up, But Not Locked Out: Why Estate Planning Still Matters During Incarceration
When you’re facing incarceration, estate planning probably isn’t at the top of your to do list.
But while you may be physically restricted, your financial and personal affairs don’t simply stop. Bills still need to be paid. Property still needs to be managed. Medical decisions may need to be made. And, importantly, your family may need to deal with your affairs if you become unable to do so yourself.
Having the right estate planning documents in place before you go into custody can help ensure that the people you trust have the appropriate legal authority to act on your behalf.
What Documents Should You Consider?
For someone facing incarceration, three estate planning documents may be particularly important:
- Power of Attorney: A legal document which allows someone to manage your financial and legal affair;
- Enduring Guardian: A legal document which allows someone to make certain personal, medical and lifestyle decisions if you lose capacity; and
- Will: A legal document which sets out who you want to receive your assets when you die.
Each document serves a different purpose, so having one does not necessarily replace the need for the others.
Power of Attorney: Who Will Manage Your Finances?
Being in custody doesn’t mean your financial responsibilities disappear.
You may still have:
- Mortgage or loan repayments;
- Utility bills and other expenses;
- Bank accounts requiring management;
- Property that needs to be maintained or dealt with;
- Investments or business interests; or
- Legal and financial transactions that need to be completed.
A Power of Attorney allows you to appoint someone you trust to deal with financial and legal matters on your behalf.
What happens if you don’t have one?
Your family members do not automatically have authority to manage your financial affairs simply because you are incarcerated.
Without a Power of Attorney, family members may have difficulty liaising with your bank, maintaining your property or assisting with other financial matters. Depending on the circumstances, alternative legal processes may be required before someone can obtain authority to act.
As a result, this can mean additional time, expense and stress are added at an already difficult time.
Enduring Guardian: What If You Lose Capacity?
A Power of Attorney deals with financial and legal matters. An Enduring Guardian is different.
Under the Guardianship Act 1987 (NSW), you can appoint an Enduring Guardian to make certain personal and lifestyle decisions for you if you lose the capacity to make those decisions yourself.
Depending on the appointment, this can include decisions relating to:
- Medical and dental treatment;
- Accommodation;
- Health and personal services; and
- Other lifestyle and personal matters.
It is important to remember that being incarcerated does not, by itself, mean that you have lost capacity. An Enduring Guardian becomes relevant if you are later unable to make or communicate your own decisions.
What happens if you don’t have one?
If you lose capacity without an Enduring Guardian in place, the person you would have chosen may not automatically have legal authority to make decisions for you.
In some circumstances, an application may need to be made to the NSW Civil and Administrative Tribunal (NCAT) for a guardianship appointment. That process can be more complicated than simply having your wishes documented in advance.
Your Will: Who Will Receive Your Estate?
A Will remains important regardless of whether you are incarcerated.
Under the Succession Act 2006 (NSW), your Will can set out your wishes regarding the distribution of your estate after your death.
You may want to make specific provisions for:
- Your spouse or partner;
- Children or other dependants;
- Specific family members or friends; or
- Particular assets or belongings.
What happens if you die without a Will?
If you die without a valid Will, you are considered intestate and your estate will generally be distributed according to the statutory rules of intestacy.
That means the law, rather than you, determines who is entitled to your estate.
This can also create additional administration and potential disputes for your family, particularly where family circumstances are complicated or there are competing expectations about who should inherit.
Why Is Timing Important?
Preparing estate planning documents before entering custody can make the process significantly easier.
Once you are incarcerated, practical issues can make obtaining legal advice and properly executing documents more difficult. More importantly, if you later lose capacity, it may be too late to validly appoint an Attorney or Enduring Guardian.
Estate planning is ultimately about making decisions while you are able to make them, rather than leaving your family to navigate difficult decisions later.
Locked Up Doesn’t Mean Locked Out of Planning Your Future
Incarceration can place significant restrictions on your day to day life, but your financial and personal affairs still need to be managed.
Putting appropriate estate planning documents in place can give you greater control over:
- Who manages your finances;
- Who makes decisions about your care; and
- Who receives your assets.
Estate planning can feel overwhelming at the best of times, but please know that you don’t have to navigate it alone. Whether you need to prepare a Will, Power of Attorney or Enduring Guardian, our friendly team at Lawgix can help you understand your options and put the right documents in place for your circumstances
Whether you’re inside or out, planning ahead can help protect what matters.
