Preparing legal documents

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

For any of these documents to be legally binding, you need to have capacity at the time of signing the document. Capacity includes the ability to understand the choices that are available and the consequences of your decisions, and the ability to communicate your choices.

If there could be any doubt about your capacity, talk to both your lawyer and your doctor about this.

Learn more about:

Making a will

A will is a legal document that records who you would like to receive your assets (estate) after you die. A will may also record your wishes regarding guardianship of your children.

Many people want to make a will or update the one they have as their circumstances change. Making a will is not difficult but it needs to be prepared and written in the right way to be legally valid.

It is best to ask a lawyer to help you or contact the Public Trustee in your state or territory. For more information on preparing a will, call 13 11 20.

When you die without a valid will, you are said to die intestate. This can make matters complicated, lengthy and expensive. A court appoints an administrator to arrange your funeral and then distribute your assets to family members according to a formula. If there are no eligible relatives, your assets go to the state.

Although any will can be challenged in court, having a valid will usually means your assets will go to the people of your choice, avoids extra expenses, and simplifies the process for your family.

Appointing a substitute decision-maker

You can appoint someone to make decisions for you if at some point in the future you’re not able to make them yourself. These can include decisions about your finances, property, medical care and lifestyle. This person, called a substitute decision-maker, should be someone you trust, who will listen to and understand your values and wishes for future care.

Depending on which state or territory you live in, the documents used to appoint a substitute decision-maker may be known as an enduring power of attorney, enduring power of guardianship, or appointment of enduring guardian.

Advance care directive

You can record your wishes for your future medical care in an advance care directive, commonly known as a ‘living will’. This 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 have a different name, such as a health direction, advance personal plan, advance health directive, or refusal of treatment certificate.

Keep a copy of your advance care directive for yourself and also give copies to your GP, oncologist, substitute decision-maker and solicitor. Ask your doctor or the hospital to place the directive on your medical record. You can also upload a digital version to My Health Record, a government website that stores your health information.

For more information, read the Getting your affairs in order fact sheet (you download a copy from this page), or call 13 11 20 to check whether a printed version is available. Legal advice is also recommended. Cancer Council’s Legal Referral Service can connect you with a lawyer and arrange free assistance for eligible clients.

Managing your digital legacy

If you use social media, such as Facebook, Twitter and Instagram, you will need to think about what happens to your accounts after your death. Each social media platform has different rules for deactivating accounts, while some allow your account to be turned into a memorial page. It is a good idea to leave a list of all your accounts, passwords and instructions with someone you trust, so they can manage your ongoing digital presence according to your wishes.

Palliative Care Australia has produced a Guide to a Social Media Afterlife

Organ donation

Some people with cancer may be able to donate their organs after they’ve died. This will depend on the cancer’s type and spread and will be assessed by a doctor after the death. To record your wish to donate organs, visit Share your decision with family as they will be asked to give consent after your death.

This information was last reviewed in January 2017
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