It is very important for you to plan your estate, which could include a living will, a last will and a living trust. This can help families prepare for difficult times when you are no longer around to assist or advise them. Our lives get busier and more complicated by the day, so estate planning for young and old becomes increasingly important. Young people should consider preparing certain estate planning documents, and in particular financial powers of attorney and living wills.
At the age of 18 a young man or woman officially becomes an adult in the eyes of the world. This means that you are entitled to make important financial, legal or health decisions about your lives. But what if something happens and you are unable to make these decisions at a critical time? Such situations can range from a small inconvenience to a life-threatening crisis, but if your estate is in order, it can speak on your behalf.
FINANCIAL POWER OF ATTORNEY.
A financial power of attorney allows you to appoint someone you trust, like another family member, to make financial decisions on your behalf. This document can be activated when you are incapacitated or right after it has been signed, and it will remain effective until you can resume charge of your own decisions again.
A financial durable power of attorney will allow the appointed person to handle important legal and financial matters on behalf of the grantor. In the case of a business or financial situation which involves the young adult, such as a passport or car registration renewal, it is convenient for the power of attorney to act on his/her behalf if they cannot tend to the problem. This arrangement may come in handy when there is a legal situation which requires quick action and the young adult is unable to attend. Families with a disabled family member can also benefit from the security of a power of attorney.
A living will enables you to state specific medical wishes if you are alive, but unable to communicate them. Artificial life support in the case of a coma or terminal illness is an issue often discussed in such a document. Preferences regarding administering of pain medication, artificial nutrition and other treatments can be dictated in this document.
The Terry Shaivo case shows what can happen if this document is not in place. The legal battle between her husband, family and state of Florida lasted for years before she was granted her wish and taken off life support.
HEALTH CARE POWER
With this type of power of attorney, you give someone else the power to make health decisions on your behalf. These decisions regarding serious health and emotional crises will be made based on instructions which you have given to your power of attorney beforehand. Sometimes a living will is combined with a health care power of attorney, because both of these can be revoked, i.e. it can be cancelled at any time by destroying it, communicating your wishes to your doctor, writing a letter regarding the cancellation or by creating a new living will and health care power of attorney, indicating that the new will revokes all the previous ones.
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“In terms of the settlement agreement with my ex-husband, which was incorporated into the court order, the children reside with him and I am entitled to regular contact. My ex-husband however now does not allow me to see the children or let them spend weekends and holidays with me. How can I enforce the settlement agreement?”
The parental rights and responsibilities of parents and the interests of children are governed by the Children’s Act 38 of 2005 (“Children’s Act”) which dictates that the best interests of the child is always of paramount importance and must be the determining factor when any dispute regarding a child’s rights, or a parent’s rights in respect of the child, are to be decided.
Section 35 of the Children’s Act states that any person having care of a child and who refuses or prevents another person who has contact rights to that child or who holds parental responsibilities and rights in respect of that child in terms of an order or agreement to exercise such rights or responsibilities, is guilty of an offence. In other words the section criminalises the refusal or prevention of the exercise of such access or parental responsibilities and rights. A person found guilty of this offence can be liable to a fine or to imprisonment for a period not exceeding one year.
In your situation it appears that the court confirmed settlement agreement is not being complied with. This then leaves you with the following options to enforce your rights:
You can institute contempt of court proceedings, which could result in the other party being imprisoned. You can either lay a complaint with the police, in which case the matter will proceed as a criminal matter, should the Director of Public Prosecutions decide to prosecute, or you can bring an application for contempt of court in the High Court. A party seeking an order of contempt must prove beyond a reasonable doubt that a court order was granted, that the other party has knowledge of the order and that the other party is not complying with the order. The party not complying with the order must then prove that his non-compliance with the order was not wilful and in bad faith.
It should be noted though that the fact that a parent is in contempt does not mean that a court as upper guardian of children, will automatically enforce the existing order, if it would not be in the best interests of the child involved that the terms of the order are executed.
Disputes between parents should never negatively affect the children involved. Our courts also see it as important that children have good and secure relationships with both their parents and take a stern view of parents who unreasonably deprive children of same.
In your situation, it does appear that you have access rights that can be enforced. It is strongly advised that you seek the help of an attorney to assist you on the best course of action to enforce your rights.Read More
“I received a summons today from a credit provider that gave me a personal loan. I admit that I have missed a payment or two on the loan, but did not think that I was that far behind. Surely they must at least have called me or written a letter asking me to pay up before running to court? It’s not even a big amount outstanding and now I may have to pay legal costs as well.”
As a consumer you have certain rights provided by the National Credit Act (“NCA”) which do not fall away when you default on your credit agreement. Section 129 of the NCA determines some of these rights by obliging credit providers to provide written notice to a consumer when that consumer defaults on payments under a credit agreement such as your personal loan. This notice therefore serves to warn you of oncoming litigation and a possible judgment against your name as well as informing you of possible steps to take to avoid further legal action. Simply put, this letter should assist you in planning your way forward and allow you to remedy your default and avoid legal steps which are expensive, time consuming and stressful.
A Section 129 notice must always precede any litigation involving the enforcement of a credit agreement, and it has recently been confirmed by our courts that a credit provider cannot simply attach this notice to your summons, as this would defeat the purpose of the notice.
A typical Section 129 notice (letter) should notify you that you are in default with your obligations under the credit agreement and will propose that you refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date.
Despite your rights, it remains important to recognise that if you are indeed in default, a failure by your credit provider to give you this notice does not extinguish their claim against you or excuse your default. It will only delay their enforcement of their rights under the credit agreement against you, and a court will afford you some time to make plans of repayment or to seek the advice of the above institutions.
To help you enforce your rights and correspond with your credit provider, you may consider approaching an attorney for assistanceRead More