Protect your loved ones with advanced planning

Imagine securing not just your legacy but also your peace of mind. It begins with a single, crucial step - advance planning of your legal and medical affairs. In this comprehensive guide, writer Margaret McKay unveils the intricate layers of planning your end-of-life matters, ensuring your wishes are respected.

By Margaret McKay

Advance planning: why it matters

"Live each day as though it will be your last, and one day you’ll be right."

That quote is attributed to dozens of people, including Steve Jobs, but it’s actually reported to have originated with folk hero, Breaker (Harry) Morant. The sentiment of course is to live life well, but it also speaks to planning your last goodbye.

While it’s a subject none of us wants to think about, end-of-life care and death are life’s inevitabilities. Those of us with parents who didn’t have a plan in place will know how helpful it would have been if there had been some advance thought given to what they might have wanted.

First things first. Do you have a Will?

If you haven’t already done so, make a Will, and ensure you sign it and have your signature witnessed.

The person witnessing must actually see you sign the document, and they then affix their own signature. You will need to consider who will be your executor to carry out your Will’s instructions, and who you want to leave your estate to.

Wills in Australia serve a critical role in minimising potential disputes among family members and beneficiaries.

A well-drafted Will can help clarify your intentions and prevent disputes over the distribution of assets. This is particularly important in complex family structures - like when there are step-children or family businesses - or situations where there may be disagreements among potential heirs.

By providing clear instructions, a Will can significantly reduce the emotional stress and financial costs associated with legal battles that may arise in the absence of a Will. Read more on dying intestate to find out what happens if you do not have a valid Will in place.

When a person dies without a valid Will, they are said to have died 'intestate'. In this situation, the state law sets out how the estate is shared among relatives. Sometimes a person appointed by the court will manage or administer a deceased estate which has no executor.

OK, a Will looks after your assets. Now for the most important bit … you!

In a perfect world we all hope to go to bed one night as usual, and one last time, unknowingly, we will go gently into that good night.

Sadly, most people don’t have this luxury and will require care in their twilight period. Ensuring you get the medical care you want is all about having some kind of advanced care planning in place with a decision-maker appointed. The laws for this vary in each Australian state and territory.

Unprepared people can find themselves in a situation where they are unable to communicate their preferences at that vital 11th hour. The preparation is something you must do while you have ability, or legal capacity, as it’s called.

Some put off planning for their end of life with concerns that proper advance planning carries a burden of costs, but in Australia, it can all be done quite simply and efficiently.

The document process depends where you live in but really, it’s all a piece of cake once you start the process. Let’s step through it.

Step 1: Obtain sound advice on advance care planning and directives

A visit to the Australian government health department websites, Advance Care Planning and healthdirect are worthwhile, or you can engage a lawyer to take you through it. You may also choose to have a conversation with your doctor and any other healthcare providers about your likely future needs.

It's important to discuss your advanced care plans - and make them legally binding - before you need them.

Step 2: Choose a substitute decision-maker

This is a person you trust will carry out your wishes, who will have your best interests entirely at heart, who will speak for you if you reach a situation where you can’t speak for yourself. It’s usually a partner, an adult child or children, or best friend.

Step 3: The documents – Advance Care Planning Australia has relevant forms and information for every state and territory

Advance Care Directive, sometimes called an Advance Health Directive, an Advance Care Plan, or a Living Will. This document will indicate your values and state your preferences for your future healthcare, including any specific instructions or directions for certain situations or treatments you may decide you want or don’t want. An Advance Care Directive should not be confused with Voluntary Assisting Dying (VAD) which is now legal in many states, but not the territories.

• Enduring Guardianship provides your designated decision maker with responsibility for your wellbeing when you’re incapacitated and can’t make decisions yourself, and in matters not covered by the Advance Care Directive. These might include lifestyle arrangements and where you live. There is no single Australian federal government website with information about enduring guardianship, as the laws and processes vary depending on the state or territory you live in. A lawyer can explain more about how this might apply to your individual circumstances.

• Read about enduring guardianship in New South Wales

• Read about how to appoint a guardian or administrator in Victoria

• Read about the guardianship laws in Queensland

• Read about guardianship in South Australia

• Read about enduring guardians in Tasmania

• Read about enduring power of attorney in the Australian Capital Territory

• Read about enduring power of guardianship in Western Australia

• Read about advanced personal plans and power of attorney in Northern Territory

• Power of Attorney provides your appointed person with the responsibility for your financial and legal obligations. They may operate your bank account and pay your bills, buy and sell your property and investments, sign legal documents on your behalf, and manage your financial planning and tax responsibilities. A general power of attorney is only valid for a specific period of time or purpose, for example, if you will be in hospital or overseas. An enduring power of attorney is ongoing and is activated when a person loses their capacity to make decisions. Check the laws in each state and territory and get legal advice for your specific circumstances and requirements.

• Funeral instructions can be left as a clause in your will, or you might choose to pre-plan and pre-pay your own funeral with a funeral director. You should keep a copy of your contract or agreement with your important documents and let your family or the executor of your will know about it.

With all that said, we quite like these words from Woody Allen: “I don’t want to achieve immortality through my work. I want to achieve it through not dying.”

Advice given in this article is general in nature and is not intended to influence readers’ decisions about investing or financial products. They should always seek their own professional advice that takes into account their own personal circumstances before making any financial decisions.

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