Personal

PERSONAL

Gina Jansen Lawyers have a depth of experience in a range of areas of law which involve family and personal issues and can be emotionally charged and demanding for our clients.  We pride ourselves on our empathy, listening skills and careful approach to help navigate you and your family through the options to futureproof or resolve unexpected changes.  Consult with us.

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Trusts

Creating a family trust can bean effective mechanism through which to safeguard your assets for the future. A carefully created trust can also have many other benefits such as preventing relationship property claims and claims against estates, protection against creditors as well as tax advantages. Once assets are transferred into a family trust they are no longer owned personally. We can provide advice on creating a family trust that works in the way that the client wants it to. Many clients also want a family trust to protect relationship assets so if you are getting married or starting a relationship you may also wish to have a Contracting Out Agreement prepared for added asset protection. Consult with us. 

Relationship Property & divorce

We are relationship property lawyers and can help clients to: divide their property, reach property sharing agreements, separation agreements, section 21 and 21A agreements (pre nuptials and post nuptial agreements) and Court applications to dissolve marriages and civil unions.  Our team have expertise to advise you under the Property (Relationships) Act 1976  including economic disparity, sustenance of and contributions to separate property and how the status of assets may have changed depending on the duration of a relationship. We can then draft an agreement that provides clients with certainty. The Act states assets which were the separate property of one party will become relationship property (and therefore equally divisible between the parties upon separation) where the parties have been in a relationship for three years or more. By entering into a Contracting Out Agreement (pre-nuptial agreement) couples can earmark those items of property that they wish to retain as their separate property. A Contracting Out Agreement can also deal with such things as future earnings and the acquisition of property in the future. It can also provide a formula for the division of property should a relationship end. These agreements are popular with clients who bring significant assets into a relationship which they wish to have preserved as their separate property, particularly 2ndmarriages/unions or de facto situations.  Consult with us. 

Wills

A will is essential to provide certainty about how your assets will be distributed on your death to those you want to receive them.  A will is a legal document and should be well thought out to give you and your loved ones peace of mind and alleviate stress for your family during a difficult time. Every person over 18 should have a will as even Kiwisaver contributions are an asset and need to be dealt with.  We ask the right questions to make sure your legal obligations are met, and to ensure your wishes are met.  

Let’s face it.  Modern families are complicated. Your will should address previous relationships, new relationships, step-children and grandchildren (if you wish).  Sometimes a life interest in a property is appropriate for a 2nd marriage.  Do you want to hold assets in trust for minors until they reach a certain age? Do you have a family trust?  Family trusts must be dealt with in a special way as the assets are not necessarily legally owned by you.

What is a will?  It is a legal document, that must be executed in a certain way and must comply with the Wills Act 2007. If you die without a will, or your will is invalid, your personal possessions will be distributed in accordance with the Administration Act 1969 and your assets will go to the people listed in the Act – this may not be the people you want to inherit.  

What happens if you die without a will?  An administrator will need to be appointed to act under the Administration Act 2007 via an application to the High Court.  Assets are distributed in accordance with that Act.  

We can assist you with:

  • Drafting or updating your will.
  • Advice on choosing who to appoint as your executor(s).
  • Advice on previous and new relationships and the effect on your estate.
  • Life interests.
  • Minor children and appointing a guardian(s) and holding assets in a testamentary trust.
  • Advice on the effect a marriage, separation and divorce has on your estate.
  • Leaving children out of a will.
  • Advice on the potential for claims against your estate.
  • Right of survivorship and tenants in common.
  • Understanding how you own your assets.
  • Dealing with family trusts, and businesses.
  • Forgiveness of debts.
  • Bequests to charities.

Enduring Powers of Attorney (EPA)

Setting up an EPA can be daunting.  Everyone should have enduring powers of attorney in place as accidents or illnesses can strike at any time. Or the onset of an illness, reducing a person’s mental capacity (via medication or illness) may render it too late to provide instructions and execute an EPA.  Your family will have to apply to the Family Court under the Protection of Personal Property Rights Act (PPPR) to access assets or bank accounts, pay bills or make decisions about your health care and where you live. This is a long process.  And not necessary.  We can guide you through the legal process and prepare these very important documents for you. 

What is an EPA?

An EPA is a legal document where you (the Donor) appoints a trusted person (the Attorney) to act on your behalf. Every person over the age of18 with assets and/or children should have an EPA in place especially if you are getting married, separated, or divorced, entering into a de facto or civil union, travelling overseas, buying a house, experiencing health concerns or failing health or when moving into an aged care facility in the near future.  If a person has diminishing capacity, the EPA may not be able to be executed, there is therefore no time to waste.      

The Two Types of EPAs

Personal Care and Welfare EPA

An enduring power of attorney for personal care and welfare allows your Attorney to make decisions about your health services, medical treatment, hospitalisation and where you live if you become mentally incapacitated. You can only appoint one Attorney and one substitute Attorney and the EPA only comes into effect if a medical practitioner or the Family Court decides you are mentally incapable to make decisions, understand the nature of those decisions or foresee the consequences of the those decisions.  Importantly, an EPA does not give your Attorney the power to make end of life decisions for you or be subjected to certain medical treatments. 

Property EPA

An enduring power of attorney for property allows your Attorney to manage your personal property, for example assets, bank accounts, bills. You choose whether your Attorney can act under the EPA only if you become incapacitated (and requires a medical practitioner’s certification), OR immediately allowing your Attorney to handle a business matter for you.  As the Donor, you can elect several attorneys to substitute or act jointly, and require the Attorneys to provide information or consult with others, which can be particularly useful for business owners. 

Things to Consider

  • Always appoint someone who you trust and who will always act in your best interests. You can appoint different Attorneys under each of the types, or not.
  • What assistance will your attorney need from third parties?  For example, you may have a business and require your Attorney to consult with or provide information to your accountant or other family members.
  • For a property EPA, do you want this in effect immediately or only if you become mentally incapable.
  • If your first choice of attorney becomes unavailable, who do you want to “sub” in?
  • People accepting appointment as Attorneys need to fully understand their legal obligations under an EPA and is an important decision not to be entered into without a full understanding of the obligations and potential to be reporting to the Family Court.

We can help you with advice on:

  • How to choose your Attorneys
  • The restrictions a Donor can have in his/her EPA.
  • Drafting and executing EPAs for both Personal Care and Welfare and Property.
  • Advice about disputes.

Protection of Personal & Property Rights Act 1988

Where EPAs are not in place, a person will need to make an application to the Family Court under the Protection of Personal & Property Rights Act to act as a Welfare Guardian and Property Manager and is an expensive and time consuming process. We can provide legal advice and prepare an application to the Court for you to be appointed as Property Manager, Welfare Guardian or other orders.   

Estate Administration

Sadly, death comes to all of us.  When that time comes for your family member, we can provide assistance to the executor(s) to guide your through the responsibilities and legal liabilities. We can advise estate administration, make applications for a grant of probate or letters of administration where there is no will, claim liability and assist you to bring in the assets of the estate, pay the debts of estate, and when and how to distribute the estate.  We assist with the formal legal processes involved, day to day tasks and then distribute the estate in accordance with the Will or according to the Administration Act. Consult with us. 

Elder Law

We are passionate about helping our community, in particular our most vulnerable members of society, being our elderly and disabled persons. Gina Jansen Lawyers has partnered with Age Concern Auckland and provides free workshops and clinics to members of the public, as well as advocacy services and legal advice.

For more information click HERE

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