A hospital room and some boring paperwork

Dear Friends,

Recently I spent several days sitting beside my father in hospital.

The good news is that he is recovering well. The even better news is that he is already back to worrying about his golf handicap, which I have come to regard as the most reliable measure of health in Australian men over 70.

So there I was, feet up in an uncomfortable hospital chair, laptop open, one eye on the numbers ticking away above Dad's bed while he slept.

I spend much of my working life helping families prepare for moments like this. The structures, the succession planning, the powers of attorney, the conversations nobody particularly wants to have but everyone is grateful they had. For a few days, however, I found myself on the other side of the equation. I wasn't the adviser. I was simply the daughter.

There is nothing glamorous about a well-organised estate plan. In fact, if it is working properly, most people never notice.

Nobody was searching for a Will. Nobody was trying to remember whether an enduring power of attorney had ever been signed. Nobody was standing in a corridor debating who had authority to make decisions. Everything was already where it needed to be. That may not sound particularly exciting, but when you're sitting in a hospital room watching someone you love recover, it feels extraordinarily valuable.

Over the years I have noticed that you can usually tell which families did the work early. They are not scrambling to find documents or reconstruct conversations that should have happened years ago. The difficult decisions were made slowly and thoughtfully while everyone was healthy enough to make them. When the crisis arrives, they get to be daughters, sons and spouses rather than reluctant administrators.

If your parents are getting older and their affairs are not in order, my advice remains unchanged: sort it out while it is still a conversation and not a crisis.

One of the few silver linings from this year's tax changes is that people are finally pulling old estate plans out of drawers and having another look at them.

Three issues I am seeing appear so regularly in reviews that they are starting to feel familiar.

• -Testamentary trusts drafted before the NSW land tax and transfer duty changes.
• -Superannuation death benefit nominations that no longer align with the broader estate plan, often with little consideration given to whether death benefits tax may apply or who ultimately bears it.
• -Blended family arrangements where assets travel in one direction and tax liabilities travel in another.

The rest of the issues arise from documents that were prepared years ago and have not kept pace with changes in family circumstances, superannuation balances, asset structures or tax law.

Financial advisers see this every day. A strategy that was right in 2015 is not necessarily the strategy that delivers the intended outcome in 2026.

You may recall the proposed 30 per cent minimum tax on discretionary trusts announced in the Federal Budget.

The good news is that testamentary trusts were ultimately excluded from the proposal, which was a sensible outcome and one I was pleased to advocate for alongside many others during the consultation process.

What remains less clear is how some aspects of the beneficiary provisions will ultimately be interpreted. Treasury has not yet provided the guidance many practitioners have been hoping for, which means there are families whose documents are likely to work exactly as intended and others whose documents may benefit from a review once the position becomes clearer.

If there was one lesson from the consultation process, it was this: drafting matters.

Two families can have testamentary trusts that appear almost identical on the surface but produce very different outcomes depending on the words used and the flexibility built into the document.

I recently discussed the issue with James Kirby on The Money Puzzle and explored it further in Firstlinks:

• -Firstlinks: Testamentary Trusts Survived the Trust Tax. The Drafting Battle Has Just Begun.
• -The Money Puzzle: You Can't Take It With You... But You Should Do This.

It is not only Wills and trusts that have changed.

From 1 September, New South Wales introduced significant reforms to guardianship laws. One practical consequence is that enduring guardians now require specific authority to consent to restrictive practices, such as locked-door arrangements in aged care facilities, rather than relying on more general health and lifestyle provisions.

If I drafted your testamentary trust or enduring guardianship documents, you do not need to do anything at present. I am following both developments closely and, if they ultimately require changes to documents I have prepared, you will hear from me directly.

That is one of the less obvious benefits of obtaining advice from someone who remains actively involved in the area. Estate planning is not simply about signing documents. It is about ensuring those documents continue to do their job as laws and circumstances evolve.

Whether you are reviewing your own arrangements or helping a family member review theirs, the question is the same: do these documents still do what they were designed to do?

If you would like an independent review, I offer a fixed-fee estate plan review and consultation for $800 plus GST.

A Note for Advisers, Accountants and Family Office Professionals

One of the consequences of this year's changes is that clients are finally pulling estate planning files out of drawers and asking whether they still do what they were designed to do.

Some documents are thoughtfully prepared and remain fit for purpose. Others have not kept pace with changes in family circumstances, superannuation balances, asset structures or tax law. A surprising number have never been tested against those changes at all.

Over recent months I have spent a great deal of time in the detail of the proposed trust tax changes, testamentary trust drafting, superannuation death benefit issues and the practical implications of the new NSW guardianship reforms. What I am finding is that the risk is rarely confined to a single document. More often it sits in the gaps between the Will, the superannuation arrangements, trust structures and the family's broader objectives.

Many of the issues only become visible when the estate plan is looked at as a whole.

If you have a client with an older testamentary trust, significant superannuation balances, a blended family, charitable intentions, family trust interests or simply a Will that has not been reviewed in some time, send me the file. I will tell you plainly where things stand.

Sometimes the answer is that everything still works as intended. Sometimes there is a straightforward amendment that would improve the outcome. Occasionally there is a problem hiding in plain sight.

Either way, your client gets clarity.

Another area I have been spending a great deal of time on this year is philanthropy and structured giving through my role as Philanthropy Expert in Residence at Generous You.

One of the most interesting shifts I am seeing is advisers becoming more comfortable having conversations about purpose, values and giving as part of broader wealth planning. Increasingly, clients want to talk not only about what happens to their wealth when they die, but also what they can do with it while they are alive.

Generous You has developed some outstanding resources to help advisers have those conversations in a practical and client-friendly way. If you are curious about incorporating giving conversations into your advice process, or simply want to see what is available, please get in touch. I would be very happy to share them.

Where the Law Meets Purpose

Every now and then, consultation actually works.

The testamentary trust exemption did not happen by accident. Practitioners, advisers and professional bodies spent months explaining why the proposal would create unintended consequences for ordinary families.

That experience reinforced something I have long believed: good outcomes usually happen when people who care deeply about a sector are prepared to engage with it.

It is one of the reasons I continue to spend time working across the for-purpose sector alongside my legal practice.

One week I might be speaking with the philanthropists of Sydney Community Foundation about incorporating charitable giving into their estate planning. The next I might be working with advisers through my role as Philanthropy Expert in Residence at Generous You, helping families think about the role philanthropy can play alongside wealth transfer. At the same time, I might be supporting the board of MortarCAPS Higher Learning Data Standard as it develops a sector-owned common language that allows universities around the world to share information more effectively.

I am also currently assisting a national charity to think through the long-term sustainability of its legacy giving program and how it can continue attracting future bequests.

On the surface, these projects look very different. In reality, they are all asking a version of the same question: how do we create something that continues to serve its purpose long after the original decision-makers have moved on?

I consider myself extraordinarily fortunate to work with people and organisations tackling those questions every day.

More recently, that has included contributing to the discussion around the acquisition of Australia's major charitable trustee companies by private equity firms.

Most Australians have never heard of these organisations, despite the fact they oversee billions of dollars held in charitable trusts and bequests. Yet these trusts represent the wishes of people who are no longer here to ask questions about how their funds are managed or whether their intentions continue to be honoured.

It was that issue that prompted me to write Who Speaks for the Dead?, a piece exploring what these transactions could mean for donor intent and the future stewardship of charitable capital. James Kirby has also covered the issue in The Australian.

The Perpetual Wealth sale still needs ACCC approval and ministerial consent to the change in control of the trustee business. There is still time to ask for conditions that protect the charitable trusts.

In each state and territory, the Attorney-General is the legal protector of charitable trusts. I have set up a simple page that lets you write to yours in two minutes, from your own email. Nothing is stored and nothing is sent on your behalf.