Legal Notes by Linda Geronimo Santos





1. Confusion between a Will and an Enduring Power of Attorney

There appears to be a common mistake about the roles of a Will and an Enduring Power of Attorney for the lay person. A will is a document prepared by a testator (male person making a will ) or a testatrix (female person making a will). A will is a formal document that provides instructions on how to distribute the estate of a person after death. It provides and requires the following:-

- Full name of person making a will, address, and occupation if any

-Full name of trustees or executors of the will of a person making the will.

(when someone dies, an executor is the person appointed by the will to administer the estate. What this means really is that the executor makes sure that the debts of the deceased are paid and their assets or possessions go where the deceased wanted them to go. A testator/testatrix can name more than one executors if so desired.

If the deceased has infant children, the executor or trustee so named is usually appointed as guardian of the deceased’s infant children.


Usually the will would name the beneficiaries of the estate, and how the assets are to be distributed. It could be specifically named, like “half” or 50%, or as “tenants in common in equal shares.”

There is a class of beneficiaries generally accepted by Australian courts – the spouse/partner and the children of the deceased.

2. Power of Attorney/Enduring Power of Attorney

A power of attorney is a formal document giving another person the authority to make legally binding decisions on your behalf.A power of attorney is a formal document giving another person the authority to make legally binding decisions on your behalf.

There are two types of power of attorney: general power of attorney and enduring power of attorney.

General power of attorney

You would use a general power of attorney to appoint someone to make financial decisions on your behalf for a specific period or event, such as if you’re going overseas and need someone to sell your house or pay your bills. It’s used while you can still make your own decisions and ends once you no longer can (i.e. you lose capacity).

Enduring power of attorney

You would use an enduring power of attorney to appoint someone to make financial and personal decisions on your behalf if you become unable to make your own decisions, e.g. if you have failing cognitive health or lose capacity to make decisions.

The Public Guardian can be appointed to make decisions on your behalf under an enduring power of attorney.

Put it simply, you use a general power of attorney if you want someone to make a financial decision for a discrete period of time; you use an enduring power of attorney if you wish to have someone act on your behalf if you become mentally or psychologically incompetent.

   You use a Power of Attorney/Enduring Power of Attorney while you, the grantor, are still alive. The Will takes over when the person dies; i.e. the Power of Attorney or Enduring Power of Attorney is used while the grantor (the person giving the power of attorney to a third party), is still alive. The Will applies when the testator/testatrix is deceased.

The Power of Attorney and the Enduring Power of Attorney are both registrable at the Land Property Administration (formerly known as the Land Titles Office); the Will is not.

3.             Should you have one and not the other?

It is advisable to have both the Will and the Enduring Power of Attorney done. The Enduring Power of Attorney and the Will must be made while the person is still mentally competent. When a person becomes mentally or otherwise incompetent, the courts will not accept the document signed by the person (who is mentally incompetent or psychologically unsound).

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  • LEGAL NOTES by Linda Geronimo-Santos

    There was a boost for employer nominated visa applicants for many years, particularly in regional areas and in the mining regions, particularly in the Pilbara area in Western Australia, and Mount Isa in north of the border.
    The mining boom contributed to the healthy economy in the country.
    “That boom provided Australia with rising national income and extended Australia’s recession-free period to 24 years. Reserve Bank of Australia (RBA) research suggests that mining’s purple patch added 10 per cent to Australian living standards in the 10 years to 2014.” It provided as a buffer against global economic downturn for many years.
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    With the downturn in the needs for our coal and steel and other resources, there is a corresponding sluggish effect on immigration activity, particularly for employer- nominated visa applicants and visa holders.
    The most common visa subclasses are subclass 457 visas which enabled qualified and experienced workers to stay for up to four years on temporary residence visa.
    After two years working with the same company, the worker may be eligible to apply for permanent residence visa, subject to the agreement of the same employer to sponsor the worker for permanent residence visa. The problem arises when the employer is unable to continue with the sponsorship either by way of issues with the DIBP (non-compliance with DIBP requirements for visa sponsors), or the reduced need for same workers in the industry as an effect of downturn in mining activities.
    This slowing down of mining activities is reflected even in costs of real estate in the mining sector. Whereas some years ago, a 3-bedroom, ordinary cottage in the Pilbaras can command as high as a million-dollar mark, these days, same cottage will find it difficult to get a buyer for $400,000.00. Same applies with businesses.
    Permanent residence (subclass 186/187) visa from 457 visas.
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    Where the 457 visa holder is not sponsored by the same employer, the visa holder can apply for direct entry (must meet English language requirements and skills assessment requirements), or the visa holder can apply for regional sponsorship, or by labour agreement with the employer.
    The visa holder who does not qualify for subclass 186 because of sponsorship issue with former or current employer, the visa holder can apply for subclass 187 visas – permanent residence sponsored to work in a regional area.
    The visa holder/visa applicant should also be mindful of the Skilled Occupations List that is subject to change from time to time depending on the changing needs for services of certain sectors in the industry.
    It is best that a visa applicant should see a migration professional in order to avoid wasting time and money.

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