Paraparaumu

Kapiti Collective
32A Howell Road
Corner Howell and Seaview Roads Paraparaumu Beach

Waikanae

12 Oriwa Street Waikanae 5036

Wellington

Meeting rooms arranged.

Postal address

PO Box 85
Waikanae 5250

ELDER LAW

Wills – Memorandum of Wishes – Living Will or Advance Directive – Estate administration

Enduring Powers of Attorney – for personal care and welfare and for your property matters

Rest homes and retirement villages – occupation rights agreements

Reverse mortgages, home equity loans, home equity lines of credit

Free initial consultation – A 10% discount off your legal fee if you are a SuperGold card holder.
Wise Owl Legal Ltd

Elder law is a branch of law that serves the needs of the elderly and the disabled as well as their family. We can provide a range of services for those approaching retirement or have reached retirement. We start with a free initial review of your circumstances to determine what you may need.

Our services include assistance with:

  • Your Will - perhaps a memoranda of wishes and/or a living will/ advanced directive.
  • A family trust
  • Enduring powers of attorney as to your care/welfare and as to property matters.
  • Rest home care and buying into a retirement village
  • Reverse mortgages and home equity loans
  • Other legal advice of a general nature to assist your personal circumstances and your asset protection and estate planning needs.

In addition to a free initial review - we offer a 10% discount off our fee if you hold a government SuperGold card.

WILLS

MAKING A WILL - SEE US - to get things started -WE OFFER:

  • A free initial consultation by phone or in person to discuss what you need to think about when making a will. We can email you our form or fill it out with you.
  • A fixed fee for a standard will. For more complex wills it may cost more.
  • A 10% discount off our fee if you hold a government SuperGold card.
  • A free standard will with each successful residential sale or purchase of property that we do for you.
  • To hold your will for you and give you a photocopy. You may prefer to take it with you. But keep your will in a safe place and make sure your executor knows where that is.

What we do:

First we receive your will instructions, then we draft the will and attend you on signing it. We make sure that your will is written in clear language so that you fully understand it. Because of the importance of your will, the law says that it must be in a prescribed manner. Do-it-yourself kits do not always cover all aspects you need to consider. It is far better to get legal advice from us and that we do the will for you.

What is a will?

Your will contains your instructions about what you want done with your property after you die and how you want your family looked after. It could be the most important paper you ever sign. A will can relieve financial and emotional strain on your family after your death and help minimise the likelihood of a dispute about your estate. It is not just money, but all your possessions and any debts.

Who can make a will?

Anyone over the age of 18 can make a will. A person under 18 can make a will if they are (or have been) married or in a civil union or de facto relationship. Others under the age of 18 can make a will if given approval by the Family Court or if they are in the military or are a seagoing person.

When should I make a will?

Now is the answer. Life is uncertain. Death is certain. Mostly we do not know exactly when so we should plan ahead. Even if you do not own major assets, you can quickly build up possessions that can have monetary or sentimental value to you and to others.

It is particularly important to make a will when you marry or are in a civil union or de facto relationship or when you have children. If you marry or enter into a civil union, any will made before that is automatically revoked unless it is made in contemplation of that relationship (best expressed in the will itself). This applies even if you marry or enter into a civil union with someone who is a beneficiary of your existing will. You should revise your will if a relationship ends.When you separate legally or “divorce” any provisions made for your ex-spouse or civil union partner will be void, unless you have made it clear in your will that you want them to remain. With de facto partners the situation is different. Entering into a de facto relationship does not revoke an earlier will. You may disadvantage your existing partner if your existing will benefits a previous partner. So if you do not want that person to administer your estate or to inherit, you must change your will.

Before you appoint a friend or family member as your executor (who carries out the instructions in your will), think about whether they will outlive you and whether they have the skills and ability to do the job. Update your will every time there is a significant change in your life. Keep everyone informed. You should discuss your will with the person you want to appoint as executor. Many folk also discuss their wills with their beneficiaries, so everyone understands the situation.

What should be in a will?

Your will should say that this is your final will and it revokes all previous wills. It should provide for payment of your funeral and memorial expenses and liabilities, such as mortgages, overdrafts and debts. It should say who your executors and trustees are, who the beneficiaries are and what they should get. Your beneficiaries are those who you want to inherit your personal possessions as well as your general assets. Some people make a provision in their will asking their executor to observe any list they leave about who is to receive particular less valuable items. You may be able to update the list without changing your will.

You will need your beneficiaries’ full names and their relationships to you, and, if they are children, say how old they have to be before they get the property, say what happens if they die before you, who you want as the guardians of your infant children, any special gifts you want to make to anyone.

Some terms used re wills:

Your "executor"carries out the instructions in your will. Your "trustee" is the person who looks after the property in your estate until the executor is ready to distribute it. Usually the same people are appointed to do both jobs. It is generally best to choose two people as joint trustees and executors, partly because of the risk of your executor dying before you do. You might want to choose a professional and a friend or relative. For clarity, your will should say who makes the final decision if the executors disagree. You can choose anyone as executor and trustee. It can be a family member, a friend, a lawyer, someone from a trustee company, or some other professional. Unless your estate is very complex, a friend or family member should be quite capable of doing the job. This is especially so, when it realised that the executor instructs the lawyer to obtain "Probate" and to administer your will by gathering in the assets and distributing them in accordance with your will. If there is no will, your administrator does so and it is called "Letters of Administration."

Beneficiaries:

The beneficiaries are the people who will receive your property after you die. You will probably want to leave your property to loved ones, such as your spouse or partner and your children. You can also leave property to a family trust, or you can make a bequest to a charity or other organisation. It is almost entirely your decision who you leave property to. Your will should make adequate provision for your dependents (partners, children, adult children not able to look after themselves and sometimes parents). If it doesn’t, they may be able to make a claim on your estate. A gift to one of your children who dies before you will pass automatically to their child (that is, your grandchild) unless your will says otherwise. But your will should make provision for this possibility, particularly when your child has more than one child.

Guardianship:

If you have children aged under 18, your will should say who their legal guardians will be if you and their other parent are dead.

Property ownership: - Joint ownership:

If you own property jointly with someone else, when you die the property will automatically pass to the surviving owner or owners, unless there is an agreement which says otherwise (subject to the rules in the Property (Relationships) Act). But if you own the property as "tenants in common", your share of the property will pass to your estate on your death and is dealt with as your will directs.

Bequest or gift to charity:

This might be a specific gift such as money or a residue gift – that is - part of anything that is left of the estate after specific gifts. You can give directions as to how a business you own should be dealt with when you die.

MEMORANDUM OF WISHES:

You can set out in your will special requests for your funeral arrangements and what you want to happen to your remains (burial or cremation), but we generally deal with that now by a separate memorandum of wishes, which accompanies your will. These instructions are your wishes only and are persuasive but not compulsory. Your executor(s) will generally be able to attend to them, but are not legally bound to do so. If there is no agreement as to burial arrangements, your executor(s) have the right and duty to decide. You may also wish to donate organs/tissue for grafting or transplant purposes or to give instructions as to the care of your pets or for some other purpose.

A LIVING WILL OR ADVANCE DIRECTIVE

What is it? It is a written or oral instruction made while you are in good health and of sound mind, which explains what you would want to happen if you suffer from an illness or accident that leaves you incompetent to make decisions about your health care. Incompetence could simply be that you cannot communicate your advance wishes e.g. a coma, dementia or some other reason. You can specify in advance what treatments and care you want to receive or not receive, such as a blood transfusion, or not to be resuscitated or to be kept alive with a life support system in certain medical events.

We can assist you with advice and with several sample documents to help you decide. We can also draft your specific wishes and attend you on your signing the document you choose.

The Code of Health and Disability Services Consumers' Rights gives you the right to use an advance directive. It describes a living will or advance directive as “a written or oral directive by which a consumer makes a choice about a possible future health care procedure and is intended to be effective only when he or she is not competent".

The Health and Disability Commissioner (HDC) has produced an advance directive which allows people with mental illness to specify what treatment they agree to, and what treatment they do not consent to receive, if they become unwell in the future. For more information on advance directives, visit the HDC website.

The NZ Medical Association (NZMA) has produced information about advance directives in line with the Code, and has sample forms that can be used by patients.

ESTATE ADMINISTRATION

Administration of your estate is an important responsibility and must be carried out with great care. We can attend to the legal work for you on instructions from the personal representatives appointed by your will, known as executors. Where there is no will, they are appointed by the court and are called administrators.

Where a will appoints executors, their authority to deal with your estate is confirmed by the High Court in a grant of “Probate”. Where there is no will, the administrators must obtain “Letters of Administration”. The administrator appointed is the person who stands to benefit most from your estate, such as your surviving spouse or one of your children. If none of them want to do it, certain others can be appointed.

On instructions, we will prepare the Application to the High Court for grant of Probate or Letters of Administration. Once granted the will and Probate or the Letters of Administration becomes a public record. We obtain a sealed copy from the Court to enable administration of the estate.

As the estate’s lawyer, we will advise and generally assist your executor or administrator with the administration of the estate. After we obtain the sealed copy of the Probate or Letters of Administration, we can assist with the involvement of other services such as valuers, accountants, real estate agents, sharebrokers and other advisors. Occasionally issues arise, such as a claim against the estate. Where that happens, we can arrange further legal assistance as required. The costs will come out of the estate.

Your personal representatives have a range of duties including arranging the funeral (if that is not already done), preserving the assets, and where appropriate, selling or disposing of property in the course of administration of the estate, paying debts, testamentary expenses and taxes of the estate, keeping accounts and records of all dealings involving the assets of the estate and distributing them according to the terms of the will or on intestacy.

For more information about wills and estate administration - Please ask us if you would like an informative booklet from the NZ Law Society called “Making a will and estate administration – Do the right thing – see a lawyer first.”We acknowledge several extracts from the booklet used in this information sheet. They have also produced an online version. This may be freely downloaded from the Law Society’s website and is located at https://www.lawsociety.org.nz/news-and-communications/guides-to-the-law.

ENDURING POWERS OF ATTORNEY (“EPAs”)

What are they?

A power of attorney is a document appointing someone to make decisions on your behalf or to sign documents for you. Remember that a Will only takes effect after your death. A Power of Attorney only applies while you are living.

The most common one is the enduring power of attorney (EPA) which is flexible and will allow the person you have named to continue acting even if you are unable to make decisions for yourself.

There are two types of EPA:

  • Those for personal care and welfare. This one is concerned about such questions as where you live and that you are being properly looked after.
  • Those for Property. Property means everything you own, including bank accounts, investments, real estate and so on. It may cover all your property or just some of it.

An EPA is not just for older people. Anyone over the age of 18 may sign an EPA so long as there is no serious intellectual impairment.

Why do I need an EPA?

Life is uncertain.You can have an accident or be hospitalised with a serious illness. When you are unable to make decisions for yourself, someone needs to make sure that you are being properly cared for and that your property is looked after and the bills are paid. If you have dependents then they need to be looked after. An EPA for your personal care comes into effect if you (the donor) become mentally incapable. The person you appoint (your attorney) can make important decisions on any significant matter relating to your personal care and welfare. But only after a doctor has signed a certificate to say that you are mentally incapable. With property EPAs you have a choice. You can decide that the property EPA is to be effective only if you are mentally incapable (again a doctor’s certificate is required), or you can say that the EPA is to be effective as soon as you sign it. This can avoid the need for a medical certificate. It can also be useful to have an EPA attorney to act if you are overseas or temporarily unavailable to deal with your property.

We can advise you on your EPAs and put them in place with you:

Signing an EPA is an important decision and you need independent legal advice before you do. That is why the law says that your signature must be witnessed by an approved witness such as a lawyer, a qualified legal executive or an authorised officer or employee of a trustee corporation who is independent of the attorney you appoint. Attached to the form of EPA we will present to you are some notes. As your witness, we must explain to you the donor, the effect and implications of the EPA and sign the required certificate. But we cannot also act for your attorney. This is to ensure that you do not sign away control under the EPA without the opportunity for independent advice from a qualified person. There is no such restriction on the witness to your attorney’s signature, except that it cannot be you, the donor, or a witness to your signature.

For more information about Powers of Attorney - Please ask us if you would like an informative booklet from the NZ Law Society called “Powers of Attorney – Do the right thing – see a lawyer first.” We acknowledge several extracts from the booklet used in this information sheet. They have also produced an online version. This may be freely downloaded from the Law Society’s website and is located at https://www.lawsociety.org.nz/news-and-communications/guides-to-the-law.

REST HOMES AND RETIREMENT VILLAGES:

Call us early for free initial advice:

Your choice of a rest home or retirement village will govern the kind of agreement you actually sign. Call us early for advice. We specialise in elder law. Your initial interview is free and you get a 10% discount off our legal fee if you have the government SuperGold card.

We will ensure that you understand the advantages and disadvantages before you decide to sign the agreement to enter into the rest home or retirement village you are looking at. We will also take care of the legal documents with you.

For retirement villages:

The Retirement Villages Act 2003 provides residents with certain rights and outlines the responsibilities of village operators. There will be village rules and/or codes of conduct. In addition to the obvious right to live in your villa, unit or apartment, other rights and obligations under the agreement should be carefully considered and understood. These might include whether friends and relatives can stay, sub-letting if you go away for a period, keeping a pet, alterations, and your wishes on re-sale when you leave.

The Occupation Rights Agreement:

This sets out your particular occupation rights and obligations to the village you have chosen. You will not usually own the villa, unit or apartment. You may well be purchasing a right to occupy the space for as long as you need it. It is a personal right, created by the agreement you sign. It may be secured by a registered title, but you are not usually able to mortgage it or register other interests such as a caveat.

You will be required to sell back this right to the village owner when you leave, though you may help them to market the property to someone new. Since an occupation right is personal to you, it may or may not be owned by a family trust. You may not be entitled to any capital gain from the sale of the property, but you may have to make up the difference to the village owner if the place sells at a capital loss on the original purchase price.

The occupation agreement will have obligations in respect of the interior space. It will advise whether you pay for interior maintenance and repairs and whether you must pay refurbishment costs on termination. There are insurance obligations, the place being insured by the village owner, with your interest noted on the policy.

Later, you may want to transfer within the village, to another dwelling or a serviced apartment. You will usually terminate your existing occupation rights agreement, with the amount repaid to you put towards the amount you pay for the new dwelling, at its current market price. The sum repaid may not be enough to purchase the new occupation rights if the market price of dwellings in the village increases and you may have to make up the difference. So it is a careful selection process whenever you enter or leave accommodation within the village. We are there to help you through the process.

There will be a village outgoings fee payment, made up of compulsory elements such as insurance and fixed services and voluntary elements for the services you wish to add. Administration charges for goods or services supplied are charged through the village. You can choose medical care on a user pays basis. Utility charges relating to your place such as electricity, gas, telephone/tolls etc are not usually included in the village fee. The fee is usually payable monthly and subject to cost increases. The obligation to pay often continues after termination of the occupation licence for either 6 months or until resale.

Retirement Villages, require you to have current Enduring Powers of Attorney as to care and welfare and a valid Will in place before you enter the Village. We can prepare these for you.

Reverse mortgages, home equity loans, home equity lines of credit:

If you own a home, but not have much income to live on – sometimes called “asset rich and cash poor” then you may be able to borrow money, using your home as equity.

When people hit 65 they may still have 25 to 30 years of living to fund, thanks to increased life expectancies. A high proportion (approx. 60%) of those aged 65 and over depend entirely or largely on NZ Superannuation for their income. As a result, money can be tight, especially when unexpected expenses come up.

There are bank loans available if you qualify, so that you can live at a more comfortable level in your own home, and have sufficient funds for other expenses, whether it be home improvement, a car, a holiday or an unexpected expense that crops up and you would not otherwise be able to pay for it.

Each loan type has advantages and risks. You need to think carefully about your options and take legal and other advice before you commit to any of them. Each loan method has upsides and downsides and any such loan is a calculated risk.

We can assist you with your choices, your decision-making and with the documentation.

Reverse mortgage:

This type of loan can have monthly payments, lump-sum payments or a combination of the two. It is a deferred repayment loan due as soon as the borrower fails to pay property taxes and/or insurance, the home falls into disrepair or the borrower moves out for more than a year, sells the home or passes away.

The loan is typically repaid through proceeds from the sale of the house. You must be at least 62 and own the home outright or have a small mortgage balance. There are no income requirements but lenders must check to see if you are capable of making timely and full payments of your outgoing property charges such as taxes, insurance, homeowner’s association fees etc.

Reverse mortgages benefit you when property prices are rising and interest rates are relatively low. But when the reverse happens the value of your equity can be rapidly reduced. They are not ideal for everyone. There may be other options. Get independent legal advice. Discuss with your family.

Protections:

In 2008 the Ministry of Social Development developed a code of standards for reverse mortgages, but it is voluntary and not legally binding. Its standards include lifetime occupancy, no negative equity and clear explanations of the conditions, charges, costs and responsibilities, independent legal advice before you sign up, access to an independent complaints service.

Home-equity loan:

Like a reverse mortgage, a home-equity loan lets you convert your home equity into cash. A home equity loan is a mortgage loan where you receive a loan as a lump-sum payment and make regular payments off the principal and interest, usually at a fixed rate. There is no age requirement and you must have at least 20% equity in the home. You must have a good credit score and proof of a steady income sufficient to meet all financial obligations.

Home – equity loan line of credit (“Heloc”):

Another type of home-equity loan is the home equity line of credit or Heloc. The line of credit is on an as-needed basis, up to a pre-approved credit limit. You have a credit/debit card and/or a chequebook so you can withdraw money as needed. Monthly payments are based on the amount borrowed and at the current interest rate. There is no age requirement but you must have at least a 20% equity in the home. You must also have a good credit score and proof of a steady income sufficient to meet all your financial needs.

Heartland Bank offers reverse mortgages under its own name. SBS Bank offers its Advance loan. There may be other lenders. Both named banks have cooling off periods.

For more information about this topic please refer to the NZ Government website – http:govt.nz/browse/housing-and-property/borrowing-against-the-value of-your-home. We acknowledge several extracts from this website used in this information sheet.