In Australia, the legal authority to make decisions on behalf of a deceased person depends on various factors, including the nature of the decision and the existence of any legal documents such as wills or powers of attorney. Understanding these factors is essential for ensuring the proper handling of a deceased person's affairs.
This article will explore the different people who have the legal right to make decisions on the deceased’s behalf.
Executor of the Will.
When a person passes away, their last will and testament often come into effect. In the will, the deceased person typically appoints an executor to carry out their wishes and administer their estate. The executor is responsible for managing the deceased person's assets, paying off debts and taxes, and distributing the estate according to the terms outlined in the will.
The role of an executor is crucial in ensuring the smooth transition of assets and the fulfilment of the deceased person's intentions. It is important to note that the appointment of an executor only applies if the will is valid and legally recognised. Valid wills require certain formalities, such as being in writing, signed by the testator (the person making the will), and witnessed by two or more competent witnesses.
To read a comprehensive guide of duties and responsibilities of an executor of the will, you can head here.
Administrator (Letters of Administration).
In situations where the deceased person did not leave a will, or if the appointed executor is unable or unwilling to act, the court may grant letters of administration. This legal document authorises a person, usually a close family member, to act as the administrator of the estate.
When there is no will, the distribution of assets typically follows the rules of intestacy, which are determined by the relevant state or territory laws. These rules establish a predetermined order of distribution among the deceased person's next of kin. The administrator assumes similar responsibilities to an executor, such as managing assets, settling debts, and distributing the estate according to the intestacy laws.
Next of Kin.
In certain circumstances where there is no valid will or appointed executor, the next of kin may become involved in decision-making. The specific order of priority for next of kin can vary across states and territories, but generally, it starts with the spouse or domestic partner, followed by children, parents, and then siblings.
When the deceased person has not made any prior legal arrangements, the next of kin may be required to work together to make decisions regarding the deceased person's assets and estate. This can include tasks such as organising funeral arrangements, settling outstanding debts, and dividing the remaining assets among the eligible family members. It is advisable for the next of kin to consult with legal professionals to ensure compliance with the applicable laws and regulations.
Powers of Attorney.
A power of attorney is a legal document that grants authority to a designated person (the attorney) to act on behalf of another person (the principal). However, it is important to note that the authority of a power of attorney ceases to have effect upon the death of the principal.
If the deceased person appointed someone as their enduring power of attorney before their death, that person may have had the authority to make certain decisions on their behalf while they were alive. This typically includes managing financial matters, making healthcare decisions, and handling legal affairs. However, once the principal passes away, the power of attorney becomes void, and the appointed attorney no longer has the legal authority to act on behalf of the deceased.
Final thoughts on the legal authority to make decisions on behalf of the deceased.
When it comes to deciding who has the right legal authority to make decisions on behalf of the deceased, it highlights the significance of having a properly executed will. A will allows individuals to designate an executor or personal representative who will have the legal authority to administer their estate according to their wishes. Without a will, the decision-making authority may fall to next of kin or be determined by the court, leading to potential disputes and uncertainties. By creating a will and clearly outlining their preferences, individuals can ensure that their desired representative has the legal authority to make decisions on their behalf, providing peace of mind and minimising the burden on loved ones during an already difficult time.
To learn more, visit the Bare Law website or chat with our estate team for a free consultation, on 1800 959 371.
This article is not legal advice. You should speak with a legal professional for specific advice on your personal or financial situation.
Grief and bereavement support.
If you’re struggling to cope with grief after a loss, there is help available. You can reach out to a close friend or family member, or speak with your GP. Alternatively, the Australian Centre for Grief and Bereavement provides excellent information on bereavement services available throughout Australia. But for more immediate help call Lifeline on 13 11 14.