Preparing legal documents

If you haven’t already done so, now is the time to think about preparing your legal documents. In other words, 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. Having capacity refers to an adult’s ability to make a decision for themselves. It means you are able to understand the choices that are available and the consequences of your decisions, and are able to communicate your choices. For more information, talk to your lawyer and doctor, or visit end-of-life.qut.edu.au/capacity.

Learn more about:

• Making a will
• Appointing a substitute decision-maker
• Advance care directive
• Managing your digital legacy

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Making a will

A will is a legal document that sets out what you want to happen to your assets after you die. These assets are called your estate and may include your house, land, car, bank accounts, jewellery, clothes, household goods or investments. A will can also record your wishes regarding who will look after any children (guardianship).

Making a will is not difficult but it needs to be prepared and written in the right way to be legally valid. A will should be reviewed and updated as circumstances change. 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 Cancer Council’s Legal and Financial Referral Service on 13 11 20.

If you die without a valid will, you are said to die intestate. Your assets are distributed to family members according to a formula provided by the law. Although a will can be challenged in court, a valid will usually means your assets go to the people you choose. It can also help avoid extra expenses, and simplify the process for your family.

   — Ian

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Appointing a substitute decision-maker

You can appoint someone to make medical decisions for you if in the future you lose capacity to make these decisions yourself. This person is called a substitute decision-maker.

A substitute decision-maker should be someone you trust, who understands your values and preferences for future care and can make the decision you would have wanted. Depending on where you live, the documents for appointing this person may be known as an enduring power of attorney, enduring power of guardianship, or appointment of a medical treatment decision maker.

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Making an advance care directive

You can record your wishes for your future medical care in an advance care directive. This will only come into effect if you are unable to make decisions for yourself. It 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 an advance health directive or advance personal plan.

Keep a copy of your advance care directive for yourself and share copies with your GP, oncologist, substitute decision-maker, family member or friend. Ask your doctor or the hospital to place your directive on your medical record. You can also save a digital version to My Health Record, a government website that stores your health information – find out more at My Health Record. You can update your advance care directive when your preferences change.

For more on this, visit Advance Care Planning Australia or call 1300 208 582.

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Managing your digital legacy

If you use social media, such as Facebook, Twitter, Instagram and LinkedIn, you may want 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 prepare a list of all your social media accounts, passwords and instructions and leave it with someone you trust, so they can manage your ongoing digital presence according to your wishes.

If your family or friends need to delete or deactivate your account after your death, they may need to provide proof of death documentation. For more information, download Palliative Care Australia’s Guide to a Social Media Afterlife.

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Donating organs and tissue Organ and tissue donation is possible for some people with cancer. This will depend on the cancer type and spread, and will be assessed by a doctor after the death. You need to be in a hospital to donate organs but this isn’t necessary for tissue. To record your wish to donate tissue or organs, visit donatelife.gov.au. Share your decision with family as they will be asked to give consent after your death.

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