Legal Hypothetical: Guardianship goes unrewarded


JOHN lives alone in rental accommodation.

He has a relatively small bank account and apart from his car and household effects, his only other significant asset is a substantial superannuation fund that he conscientiously contributed to during his working career.

Since his wife passed-away several years ago, he has not heard from his two children, despite John sending them Birthday and Christmas cards.

John is concerned that if he loses the mental capacity to make decisions about his welfare, such as where he lives and what medical treatment he should receive, that his children, as his “next of kin” could make decisions for him which may not be in his best interests.

To prevent this from occurring, John executes an Appointment of Enduring Guardian, appointing his life-long mate, Fred.

In recognition of Fred’s willingness to take on the role of Guardian, John contacts his super fund and nominates Fred as the recipient of his superannuation upon his death.

John also makes a will, leaving his car and his bank accounts to Fred and decides to leave the remainder of his small estate to charity.

He intentionally disinherits his children.

When John needs a higher level of care, Fred sources an appropriate nursing home and after his admission, visits him daily.

When John passes away, Fred contacts the super fund and seeks payment. Unfortunately, he is informed that because Fred was never a dependent of John’s, he cannot receive the funds.

Instead, the superannuation fund pays John’s super to his estate and given the wording of the will, it ends up going to the charity and Fred misses out.

Fred does not have standing to make a claim against John’s estate for further provision.

Proper estate planning could have given effect to John’s wishes.

If YOU would like a particular issue addressed, please email Manny at [email protected] or call him on (02) 6648 7487.


By Manny WOOD, Solicitor

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