Preparing legal documents

If you have not already done so, now is the time to think about what legal documents you need, such as making a will, appointing a substitute decision-maker and preparing an advance care directive.

Learn more about:

• Overview
• Making a will
• Appointing a substitute decision-maker
• Advance care directive
• Managing social media
• Voluntary assisted dying

Overview

For these documents to be legally binding, you need to be an adult and have decision-making capacity at the time of making them, so complete them early if possible. In general, having capacity means you are able to understand the choices available and the consequences of your decisions, and that you can communicate these choices.

Each state and territory has different laws about what having capacity means (officially), and also about making an advance care directive and about appointing a substitute decision-maker. For more information, talk to your doctor or a lawyer.

Making a will

A will is a legal document that sets out what you want to happen to your assets after you die. These assets are called your estate, and may include your house, land, car, money, jewellery, clothes, furniture or investments. A will can record your wishes and guardianship plans for any children.

Making a will is not difficult but it needs to be prepared and written in the right way to be legally valid. A will should be reviewed and updated as circumstances change. It is best to ask a lawyer to advise you, or contact the Public Trustee in your state or territory. Cancer Council may be able to connect you with a lawyer. For more information, call 13 11 20.

If you die without a will, you are said to die intestate. Your assets are distributed to family according to a formula provided by law. Any will can be challenged in court, but having a valid will usually means your assets go to who you want, avoids costs, and simplifies things for family.

Appointing a substitute decision-maker

You can organise for someone to make legal, financial and/or medical decisions on your behalf if you become too unwell (lose capacity) to make these decisions yourself. This person is called a substitute decision-maker. Your substitute decision-maker should be someone you trust and who understands your values and what you want for any future care. They do not necessarily have to be a family member. Depending on your state or territory, the documents used to appoint a substitute decision-maker may be called a different name.

What happens if you don’t have a substitute decision-maker

If you cannot make decisions for yourself (lose capacity), and you do not have an advance care directive or an appointed substitute decision- maker, the law in each state and territory outlines who may make medical treatment decisions for you. This is usually someone close to you, such as your spouse or partner, family member or close friend. For more information about who may make treatment decisions for you, visit Queensland University of Technology (QUT)’s State and Territory laws.

Making an advance care directive

You can record your wishes for your future medical care in an advance care directive – what this is called varies depending on your state or territory. This will only come into effect if you can’t make decisions for yourself. It provides a record for doctors, family and carers to consider, and may be legally binding in some states and territories. Depending on where you live, the advance care directive may be called an advance health directive, advance personal plan or similar.

Keep a copy of your advance care directive for yourself and share copies with your GP, oncologist, substitute decision-maker, family member or friend. Ask your doctor or the hospital to place your directive on your medical record. You can also save a digital version online at My Health Record, a government website that stores your key health information – find out more at My Health Record. You can update your advance care directive when your preferences change.

As each state and territory has different laws about advance care directives, talk to a lawyer for specific advice about your situation. For more information, essential documents or help with advance care planning, call Advance Care Planning Australia on 1300 208 582.

Voluntary assisted dying

Voluntary assisted dying (VAD) is when a person with an incurable, life-limiting condition or illness chooses to end their life with the assistance of a doctor or health practitioner – using specially prescribed medicines from a doctor.  

VAD laws have now commenced operation in all states of Australia. VAD remains illegal in the Australian Capital Territory and Northern Territory, although the laws are under review. For information and updates on VAD for your state or territory, visit Queensland University of Technology’s End of Life Law in Australia website. 

VAD may be an option for some people who meet all the strict conditions and follow certain steps as required by the laws in their state. “Voluntary” means that it is the choice of the unwell person to end their life. Someone else cannot ask for VAD on your behalf or pressure you to ask for it; only you can ask for it and you must have decision-making capacity. 

For more details about voluntary assisted dying in NSW, visit NSW Health or call the NSW Voluntary Assisted Dying Care Navigator Service on 1300 802 133. 

It’s tough for anyone to confront their own mortality, but it’s unavoidable when you get a terminal illness. Suddenly I had to start thinking about practical things like getting a will and a power of attorney. Something else that was tough to talk to my wife about was the funeral plans, but I’m glad I got it out of the way because it’s one less thing to worry about.

Ian

→ READ MORE: Getting your affairs in order