13 Your right to plan your will and other end of life decisions

You have the right to make your own decisions as long as you have the capacity to do so.

Having ‘capacity’ when making a decision means that you have the ability to:

  • Understand the facts and main choices involved;
  • Weigh up the consequences of the choices; and
  • Communicate your decision.

Capacity can be lost through sickness or because of an accident. If you lose the ability to make decisions, someone else will have to make them for you.

This chapter explains how you can plan ahead to ensure your choices are respected as you get older. It explains how to choose someone to make financial decisions on your behalf if you can’t make them yourself; how to record your preferences for medical treatment; and how to make a will.

13.1 Appointing a person to make your financial decisions

At some point as you age, you may decide that it is in your best interests to appoint someone to make decisions on your behalf. This is generally known as appointing a ‘power of attorney’ and people do this when they have a health condition that affects decision-making or they think they may lose the capacity to make decisions in future.

In most cases people give power of attorney to one or more trusted family members, to a lawyer of their choosing, to a government public trustee, or to a combination of these.

It is important to take steps to appoint a power of attorney well before you lose your ability to make decisions independently. If you do lose the ability to make decisions before you have appointed a power of attorney, the government will appoint someone to make decisions for you.

To appoint a financial decision maker you will need to complete a legal form called a ‘power of attorney’.

The person who you appoint to be your ‘attorney’ will be able to make legal and financial decisions as if they were in your shoes. They will be able to do things like pay bills, sell your property and receive money on your behalf.

A ‘general power of attorney’ is the document used to give another person the power to make financial decisions temporarily. For example, if you go on holiday overseas, you may require someone to make decisions in your absence.

An ‘enduring power of attorney is the document used to give another person the power to make decisions for you when you no longer have capacity. For example, if you have an illness that prevents you from making decisions, or lose cognitive ability.

The process of making a power of attorney is different across the states and territories of Australia. In some states and territories creating a power of attorney allows another person to make decisions on your behalf across a range of matters in addition to financial matters. They may be able to make decisions about your health care and where you live for example. In these circumstances, you can limit the powers to the particular areas that suit your individual needs.

Choose someone who you trust, who is available to help when needed and is capable of making good decisions. You are also able to choose more than one person. You may decide to choose a family member and your lawyer for example. If you do not know anyone suitable, the Public Trustee or Advocate in your state or territory can be appointed as your decision maker. This is an independent and impartial body established by the government with responsibility for substitute decision making.

Once you have appointed a power of attorney, they have a responsibility to act in your best interests. They cannot use your money to benefit themselves unless you say so. If you notice this happening, seek legal advice immediately.

You can revoke a power of attorney as long as you have capacity to do so. A court or relevant tribunal can also review the actions of the attorney and suspend or revoke their powers.

Where to go for help

Contact the Public Trustee or Advocate in your state or territory for general information or to begin the process.

ACT
Office of the Public Advocate
02 6207 0707
NSW
NSW Trustee and Guardian
1300 364 103
NT
Office of the Public Trustee
08 8999 7271
QLD
The Public Trustee
1300 651 591
SA
Office of the Public Advocate
1800 066 969 or 08 8342 8200
TAS
Public Trustee
1800 068 784
VIC
Office of the Public Advocate
1300 309 337
WA
Office of the Public Advocate
1300 858 455

Seek legal advice before you create a power of attorney. If you have concerns about your attorney you may ask a third party to review the appointment. Contact the Public Trustee or Advocate in your state or territory.

You can also contact legal aid in your state or territory for legal information, referrals, and in some cases advice.

ACT
Legal Aid ACT
1300 654 314
NSW
LawAccess NSW
1300 888 529
NT
NT Legal Aid Commission
1800 019 343
Qld
Legal Aid Queensland
1300 65 11 88
SA
Legal Services Commission of SA
1300 366 424 or 08 8463 3555
Tas
Legal Aid Commission of Tasmania
1300 366 611 or 03 6236 3800
Vic
Victoria Legal Aid
1800 677 402 or 03 9269 0120
WA
Legal Aid Western Australia
1300 650 579 or 08 9261 6222

The law society in your state or territory can help you to find a private solicitor or refer you to a community legal centre.

ACT
The ACT Law Society
02 6247 5700
NSW
The Law Society of NSW
02 9926 0300
NT
Law Society Northern Territory
08 8981 5104
Qld
Queensland Law Society
1300 367 757
SA
The Law Society of South Australia
08 8229 0288
Tas
The Law Society of Tasmania
03 6234 4133
Vic
Law Institute of Victoria
03 9607 9550
WA
The Law Society of Western Australia
08 9324 8600

 

13.2 Advance care planning: expressing your wishes about medical treatment

You have a right to make your own decisions about your health care and medical treatment as you age, but you will need to plan ahead. If you become sick or develop a form of dementia, you may lose the ability to make future health decisions.

Therefore, it is a good idea to plan your medical treatment in advance and record the health and medical treatment that you want in future. This process is called ‘advance care planning’. With advance care planning, doctors, family and friends will know what treatment you would and wouldn’t want, even if you can’t communicate your wishes. You may also use the ‘advance care planning’ document to indicate who you would like to make decisions about your health care and medical treatment if you are unable to do so.

You can record your wishes using a document commonly known as an advance care directive. The name given to this document and the procedures you must follow differ in each state and territory.

State
Name of document
NSW
Advance Care Directive
QLD
Advance Health Directive
WA
Advance Health Care Directive
Tasmania
Advance Health Care Directive
ACT
Health Direction
Victoria
Advance Care directive
SA
Statement of Choices
 
Anticipatory Direction
NT
Statement of Choices
 
End of Life Directive

A directive can be legally binding. This depends on how it was made, how current it is and what it contains.

Where to go for help

Visit the Respecting Patient Choices website at www.respectingpatientchoices.org.au to access information and to find the forms that are relevant to your state or territory.

Contact your local authority for more information and forms.

ACT
Respecting Patient Choices, The Canberra Hospital
02 6244 3344
NSW
NSW Health
02 9391 9000
NT
Territory Palliative Care
08 8922 6761
Qld
Office of Adult Guardian
1300 653 187
SA
Office of the Public Advocate
1800 066 969
Tas
Palliative Care, Department of Health and Human Services
1300 135 513
Vic
Advance Care Planning, Integrated Care, Department of Health
03 9096 7093
Vic
Office of the Public Advocate
1300 309 337
 
Respecting Patient Choices
03 9496 5660
WA
Department of Health, Advance Health Directive Support Line
08 9222 2300
 
Office of the Public Advocate
1300 858 455

13.3 Making a will

Making a will is essential if you want to have a say over who will get a share of your money and property when you die. If you die without a will your assets will be divided among relatives according to a pre-determined formula contained in the law. If you don’t have close relatives according to the law, your estate will go to the government.

Making a will is simple and need not be expensive. A solicitor, Public Trustee, or Public Advocate can help you write or update your will. Some Public Trustees or Public Advocates will not charge you to prepare or update your will. However, fees may be payable in the future when your estate is administered.

There are will kits available to assist you to make your will. You need to ensure that your will shows your intentions clearly and meets the formal requirements to be valid. It is safer to have a professional make your will to ensure it is done properly.

Plan ahead because you must make a will while you still have capacity.

Update your will regularly, especially if you marry or divorce; have children or grandchildren; if your spouse or beneficiaries die; or if your financial circumstances change.

If you feel you are being pressured when making or changing your will, read the chapter 5.1 on financial abuse for information about how you can avoid family pressures.

Where to go for help

To get started on making a will, contact a solicitor. The Law Society in your state or territory can help you find a private solicitor. If you can’t afford a private solicitor, speak to the law society about community legal centres in your local area.

 

ACT
The ACT Law Society
02 6247 5700
NSW
The Law Society of NSW
02 9926 0300
NT
Law Society Northern Territory
08 8981 5104
Qld
Queensland Law Society
1300 367 757
SA
The Law Society of South Australia
08 8229 0288
Tas
The Law Society of Tasmania
03 6234 4133
Vic
Law Institute of Victoria
03 9607 9550
WA
The Law Society of Western Australia
08 9324 8600

 

The Public Trustee in your state or territory can prepare your will directly or act as an executor. Fees usually apply.

ACT
Public Trustee for the ACT
02 6207 9800
NSW
NSW Trustee and Guardian
1300 364 103
NT
Office of the Public Trustee
08 8999 7271
Qld
The Public Trustee
1300 651 591
SA
Public Trustee
08 8226 9200
1800 673 119
Tas
Public Trustee
1800 068 784
Vic
State Trustees
03 9667 6466
1300 138 672
WA
Public Trustee
1300 746 212

 

13.4 Nominating a person to receive your superannuation death benefits

When a person dies, the balance of their superannuation fund will be distributed to a single or multiple beneficiaries.

People often think that they can use their will alone to nominate the person to whom they wish to leave their superannuation after their death.

In fact, superannuation is not a considered to be an ‘estate’ asset and therefore it is not automatically distributed as part of your will.

The trustee of your superannuation fund decides the distribution of your superannuation ‘death benefits’. The benefits can be paid to your legal representative (the executor of your estate) or to your dependants. A dependant includes:

  • A spouse (it does not matter if the spouse is not financially dependent on you);
  • A child of the member (it does not matter if the child is not financially dependent on you; and
  • A person in an interdependency relationship with you at the time of your death (this is defined in the superannuation law, but generally ‘interdependency’ means people who have been living together and providing support to each other). 

If you want to nominate the person or people who will receive your superannuation death benefits, then you must make a death benefit nomination. There are two types of nomination – binding and non-binding death benefit nominations.

Your superannuation fund may allow you to make a binding death benefit nomination. If the nomination is valid under the law, the superannuation benefits must be paid in accordance with the nomination. Binding death benefit nominations must be confirmed every three years otherwise they lapse.

Your superannuation fund may allow you to make a non-binding death benefit nomination. Nonbinding nominations allow you to inform your superannuation fund trustee of your wishes, although the trustee is not bound to follow the nomination.

Not all superannuation funds accept binding or non-binding death benefit nominations. Each fund’s governing rules are different and may impose other restrictions on the trustee’s discretionary power to pay superannuation ‘death benefits’. You need to check with your superannuation fund to find out the rules that apply to death benefits.

In deciding how to distribute a death benefit, the trustee of a superannuation fund must act fairly and reasonably. While the trustee’s discretion is not overridden by a will, if a trustee does make a distribution to your legal representative, the benefits will be distributed in accordance with your will.

Where to go for more information

Contact your superannuation fund to find out whether the rules of the fund allow binding death benefit nominations and/or non-binding death benefit nominations. Your superannuation fund will be able to help you through the process of making a nomination.

Financial planners and advisers can give you more information and advice about superannuation ‘death benefit’ distributions. For help finding a financial planner you can contact:

  • The Financial Planning Association on 1300 626 393;
  • The Association of Financial Advisers on 02 9267 4003; or
  • CPA Australia on 1300 73 73 73.