Posted on December 10, 2020
By Cassandra Dargan
If you have separated from your partner, we strongly recommend that you review your will and estate planning documents.
In Victoria, if you have separated from your married spouse, but have not yet divorced, your spouse is entitled to the property that is gifted to them in your will.
Similarly, if you are in a de facto relationship and you have separated from your former partner, they too will be entitled to property that is gifted to them in your will.
In order to protect your estate from your former partner, we recommend revoking your previous will and preparing a new will that does not provide for your former partner.
My former partner has been appointed as my Power of Attorney; do I need to update my document upon separation?
If you have an Enduring Power of Attorney (for financial and personal matters) in place and you have appointed your former partner, it is vital that you update your Power of Attorney document. If you lost capacity, your former partner would still be able to make decisions about your finances and lifestyle decisions. Further, if you elected for your Enduring Power of Attorney to commence immediately upon signing of the Enduring Power of Attorney document, your former spouse could be making financial or lifestyle decisions without your knowledge.
For example, your former partner would have the power to access your bank accounts, apply for a loan and even purchase a property in your name. Similarly, your former partner would have the power to make decisions about your lifestyle such as the decision to send you to a nursing home or care facility.
If you have appointed a Medical Treatment Decision Maker under the Medical Treatment Planning and Decision Act 2016 (Vic), your decision maker has legal authority to make all health care and medical treatment decisions for you. This authority does not cease upon the breakdown of a relationship.
If you lost capacity, your former partner would have the power to make medical decisions on your behalf including surgical procedures and even the use of life support machines.
It is important that you revoke your appointment of your Medical Treatment Decision Maker as soon as you separate and while you have capacity to do so. If you lost capacity and therefore are unable to cancel the authority, your former partner’s power to make decisions will continue unless the power is removed by the Victorian Civil and Administrative Tribunal.
If you would like to review your estate planning documents, please do not hesitate to contact one of our experienced estate lawyers on (03) 9853 0311.
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The content of our news articles are provided for information purposes only and do not constitute legal advice. We recommend that you seek professional legal advice for your specific circumstances.
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