NSW What do I need for dad?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

David Chang

Well-Known Member
31 August 2016
21
1
124
I'll try to summarise in bullet points our situation:
  1. Dad is going to respite care with view of going permanent.
  2. Dad does not speak English.
  3. Dad has a house overseas.
  4. Dad is an Australian Permanent Resident however no access to Pension from neither government.
  5. Dad is a retiree and his only asset is really his overseas house.
  6. Mom will be putting most of her hard earned savings towards dad's nursing home Refundable Accommodation Deposit (RAD).
Our objective is simply:
  1. mom wants that peace of mind that the money which she'll put in for the RAD will be fully refundable to her, once he's deceased, without any complexity in the future.
  2. mom wants for the overseas house to be given to us, once he's deceased. We understand overseas government may have their own ruling but we want to cover everything the right way from Australian government and ruling perspective.
Questions:
  1. What do we actually need for our objectives? Wills? Power of Attorney? Guardianship?
 

Perp

Well-Known Member
30 June 2015
41
6
149
  • Your Dad's overseas house needs to be addressed with a will prepared with respect to that country - there may be Chinese (?)-speaking local lawyers who can do this for you, or who have arrangements with Chinese lawyers who can do it for you
  • The refundable accommodation deposit has to be returned to the person for whose accommodation it is, not the person who paid it, so if your Dad dies in care, it will become part of his estate, so this will need to be addressed via an Australia will, leaving the RAD to your Mum
  • If your Dad lacks testamentary capacity to make a will now, then you'll need to apply to the court for a statutory will to be made on his behalf (a Power of Attorney/Guardian can't make wills) - but if he understands what making a will means, knows broadly what assets he has, and knows who his family members are, he probably has testamentary capacity (this is a very high non-technical overview of the test for testamentary capacity from Banks v Goodfellow)
  • It is probably a good idea to get other papers in order now while he still has capacity (if he does), such as enduring Power of Attorney and an Advanced Health Directive. The test for capacity to grant an EPA is considered a slightly higher test than for testamentary capacity, but broadly is that they need to understand what an EPA is and how it will work and effect them going forward.
A succession lawyer - previously known as 'wills and estates', but renamed because it's broader than that, including elder law and powers of attorney etc - will be able to assist you with all of this. (With the possible exception of the foreign will.)
 
  • Like
Reactions: David Chang