Life’s biggest question – what happens after you die? We don’t mean the after-life, but what happens to your property, cash, superannuation and other assets? You may have heard of estate planning. This is the process of making those end-of-life arrangements. It aims to give peace of mind to you and your loved ones by ensuring your assets are distributed as efficiently and quickly as possible when you pass.
With that in mind, there are three things everyone should have in place – particularly those entering retirement and the golden years:
- Last Will & Testament;
- Advanced Health Directive; and
- Alternative decision makers – for personal, health and financial decisions.
1. Last Will & Testament
A Will is a legally binding document that explains how you wish your property and assets to be distributed when you die. If you die without one (or an invalid Will), this is called ‘dying intestate’. In this case, certain laws apply and your assets will be distributed by default to your family – but perhaps not in accordance with your wishes or preferred allocation. Avoid unnecessary confusion, fees, delays and family feuds – get a Will!
Your will can be scribbled on a McDonald’s napkin or handmade Japanese ganpi and laminated – it just needs to be in writing and signed by you and two witnesses. How do you get started?
- Take stock of your assets. Think about how you want your property, superannuation, cash, trusts and personal possessions to be distributed when you pass away.
- Write it down!
- Find two people to witness you sign – they must be over 18 years old, not a beneficiary under the Will and competent. Best practice – get together with your witnesses in the same room and use the same pen when you sign.
- If you are particularly ‘advanced in years’ or have a condition that may affect your mental capacity, it’s best to get a letter from your doctor confirming you are of ‘sane mind’ when making your Will. Avoid any possibility of a disgruntled family member challenging your sanity.
- Include details of your pre-paid funeral. We highly recommend prepaying your funeral to ensure you don’t pass on the financial and emotional burden to your family. Find out more about the benefits of preparing a funeral on the Bare Cremation website.
- Pick a responsible person to be your executor. They need to pay any debts and distribute your assets to the beneficiaries when the time comes. You can choose a friend or relative or appoint an independent trustee organisation like State Trustees.
Life changes! Update your Will if you get married, divorced, have children or change your feelings about Cousin Rob.
2. Advanced Health Directive
In Queensland, you can create a legally binding Advance Health Directive.
An Advance Health Directive allows you to express your broader preferences and values for end of life and future medical treatment – like what ‘living well’ means to you, what treatments you would/wouldn’t like and any other preferences in terms of spiritual care or cultural beliefs when the time comes.
You can make a ‘values directive’ about your preferences for medical treatment to help guide your decision-maker (e.g. “Quality of life is most important to me”) and/or an ‘instructional directive’ which is a legally binding statement of your consent to or refusal of specific future medical treatment (e.g. “I do not wish to be resuscitated”).
In Queensland it is important that you consult a medical practitioner when completing an Advance Health Directive. A medical practitioner must certify and sign your Advance Health Directive for the document to be valid.
Whilst an Advance Health Directive is legally binding, it may not be followed in certain circumstances – e.g. if the directions in your Advance Health Directive are uncertain or inconsistent with good medical practice. A Queensland Advance Health Directive will likely be recognised everywhere in Australia, however there may be some limitations or extra requirements. If you move interstate, it is recommended to complete the relevant form for that state or territory.
3. Alternative decision makers
Everyone has the right to make their own decisions about the medical treatment they receive. Sometimes, an injury or illness can leave you unable to make those decisions yourself. It is a good idea to think about who you would like to make decisions on your behalf, if you lose “capacity” (i.e. your marbles or consciousness).
In Queensland, you can appoint someone to act on your behalf under an Enduring Power of Attorney or your Advance Health Directive.
This person can make decisions such as:
- Consenting to or refusing medical treatment (e.g. CPR or resuscitation);
- Allowing organ and tissue donation;
- Where and with whom you live; or
- Day-to-day issues such as diet and dress
Your Enduring Power of Attorney must follow any wishes expressed in your Advance Health Directive, except in limited circumstances.
If you don’t appoint someone under an Enduring Power of Attorney, the law determines a default decision-maker for you. It will be the first person in this list that is readily available and culturally appropriate to act:
- a spouse or de facto partner (provided the relationship is close and continuing);
- unpaid primary carer; or
- close friend or relative.
Health decisions are very personal and even the closest friends and relatives can disagree on the ‘best’ decision. Help avoid any ambiguity by making your wishes clear and nominating your preferred decision-maker.
Financial decision maker
In Queensland, you can appoint someone to manage your financial decisions. These are things relating to your financial, legal or property affairs (e.g. paying bills, making investments, purchasing property etc).
A Power of Attorney allows someone to sign legally binding documents on your behalf. This is handy if you are travelling overseas and need someone to access your bank accounts to pay your bills or manage your finances. It can also be useful to have a Power of Attorney if you become unwell or lose the ability to make decisions or manage your financial affairs yourself. This is called an Enduring Power of Attorney.
Your designated attorney can be an adult family member or friend or someone else that you trust. You can appoint one or more attorneys to act jointly or severally – and a back-up or alternative attorney, if your first choice is unable or unwilling to act.
You can specify when and how your attorney can act for certain decisions – be as specific as you want. You can also choose for them to start managing your affairs even before you lose mental capacity – or only for some decisions. Appointing a Power of Attorney does not mean that you will lose control over your finances – it simply allows someone else to manage your finances according to your instructions. Your Power of Attorney can be cancelled (revoked) at any time provided you have the capacity to do so.
A Power of Attorney or Enduring Power of Attorney form must be signed by two adult witnesses – one of those must be a justice of the peace, public notary or lawyer. A witness cannot be a relative, your carer or the person being appointed as your attorney.
Estate planning QLD: What now?
Your Will, Advance Health Directive and Power of Attorney/Enduring Power of Attorney forms do not need to be lodged or submitted anywhere. You could upload your Enduring Power of Attorney and Advance Health Directive to your My Health Record if you like. Otherwise, keep a copy in a safe place and give another to your appointed decision-maker, a trusted family member or lawyer/accountant. And get back to living!
To learn more, visit the Bare Law website or chat with our estate team for a free consultation, on (03) 9917 3388.
This article is not legal advice. You should speak with your lawyer or accountant for specific advice on your personal or financial situation.