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 the term ‘estate planning’. This is the process of making those end-of-life arrangements. Estate planning aims to give you and your loved ones peace of mind by ensuring your assets are distributed as efficiently and quickly as possible when you pass.
With that in mind, there are 3 things everyone should have in place if you are estate planning in Melbourne or greater Victoria – particularly those entering retirement and the golden years:
- LasLast Will & Testament;
- Advance Care Directive or end-of-life preferences document;
- Medical decision maker; and
- Enduring Power of Attorney (personal & financial decision maker).
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 if you die with 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. Read more about the benefits of prepaying 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. Advance Care Directive or end-of-life preferences document
In Victoria, you can now create a legally-binding Advance Care Directive. (If you made an advance care plan prior to 12 March 2018, this will merely be considered by your medical treatment decision-maker as a statement of your values and preferences. You may want to consider making a new legally-binding Advance CareDirective).
An Advanced Care 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”).
Whilst an Advanced Care Directive is legally binding in Victoria, it may not be followed in certain circumstances – e.g. if a doctor believes on reasonable grounds that circumstances have changed and the Advanced Care Directive no longer reflects your values or preferences. A Victorian Advanced Care Directive will also be recognised everywhere in Australia except NSW, Tasmania and the ACT.
3. Medical decision-maker
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 Victoria, you can appoint someone to act on your behalf under an Appointment of Medical Decision Maker document.
This person can make decisions such as:
- Consenting to medical treatment
- Refusing medical treatment (e.g. CPR or resuscitation)
- Allowing organ and tissue donation
If you don’t appoint someone under an Appointment of Medical Decision Maker, the law determines a default decision-maker for you. It will be the first person in this list that you have a close relationship with:
- Spouse or domestic partner
- Primary carer
- Eldest adult child
- Oldest parent
- Eldest adult sibling
Medical treatment 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.
4. Enduring Power of Attorney (personal & financial decision maker)
In Victoria, you can appoint someone to manage your personal and/or financial decisions. Personal matters relate to your personal or lifestyle affairs (e.g. where you live) but do not include any medical treatment (see section above). Financial matters 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 an 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 must be signed by two adult witnesses – one of those must be a doctor or someone authorised by law to witness affidavits (e.g. a lawyer, police officer etc). A witness cannot be a relative, your carer or the person being appointed as your attorney.
Estate planning: What now?
Your Will, Advanced Health Directive and Enduring Power of Attorney do not need to be lodged or submitted anywhere. 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 1800 959 371.
This article is not legal advice. You should speak with your solicitor or accountant for specific advice on your personal or financial situation.