Preparing legal documents

In this section we look at preparing legal documents.

Learn more about:

• Overview
• Making an advance care directive
• Appointing a substitute decision-maker
• Making a will
• Documents used for advanced cancer planning
• Voluntary assisted dying

Overview

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

For any of these documents to be legally binding, you need to have decision-making capacity at the time of making the document. In general, having capacity means you are able to understand the choices that are available and the consequences of your decisions, and that you can communicate these choices.

For more information, talk to your doctor or a lawyer. Each state and territory has different laws about what having capacity officially means, making Advance Care Directives and appointing substitute decision-makers.

Making an advance care directive

The written record of your goals, values and treatment preferences, and instructions for any future medical care is called an Advance Care Directive. It is legally binding and used by your doctors, family and carers if they need to make decisions on your behalf.

Depending on where you live, this document may also be known as an Advance Health Directive, Health Direction or an Advance Personal Plan. You can download and save, or print out the form specific for your state or territory from Advance Care Planning Australia. You may need the help of your doctor or lawyer to complete the form and make sure it’s signed, dated and witnessed. Some hospitals use their own forms.

If your needs change, you can choose to revise or replace your Advance Care Directive. Ask your doctor or hospital to add your Directive to your medical record. You can also save it online at myhealthrecord.gov.au.

For more information, see Advance Care Planning Australia.

For more on this, see Cancer Care and Your Rights or call 13 11 20.

Appointing a substitute decision-maker

You can appoint someone to make legal, financial and/or medical decisions on your behalf, if you lose capacity to make these decisions yourself. This person is called a substitute decision-maker. Your substitute decision-maker should be someone you trust and who understands your values and what you want for any future care. They do not necessarily have to be a family member. Depending on where you live, different documents are required to appoint a substitute decision-maker.

If you cannot make decisions for yourself (lose capacity), and do not have an Advance Care Directive or an appointed substitute decision-maker, the law in each state and territory outlines who may make medical treatment decisions for you.

This is usually someone close to you, such as your spouse or partner, family member or close friend. For more information about who may make treatment decisions for you, visit End of Life Law in Australia.

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 guardianship plans for any children.

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 advise you, or contact the Public Trustee in your state or territory.

Cancer Council may be able to connect you with a lawyer to help you prepare a will. For more information, call 13 11 20.

If you die without a will, you are said to die intestate. Your assets – such as your house, money and belongings – are distributed to family members according to a formula provided by law. Although any will can be challenged in court, having a valid will usually means that your assets will go to the people of your choice, avoids extra expenses, and simplifies the process for your family.

Documents used for advance care planning

Voluntary assisted dying

Voluntary assisted dying (VAD) is when a person with an incurable, life-limiting condition or illness chooses to end their life with the assistance of a doctor or health practitioner – using specially prescribed medicines from a doctor.  

VAD laws have now commenced operation in all states of Australia. VAD remains illegal in the Australian Capital Territory and Northern Territory, although the laws are under review. For information and updates on VAD for your state or territory, visit Queensland University of Technology’s End of Life Law in Australia website. 

VAD may be an option for some people who meet all the strict conditions and follow certain steps as required by the laws in their state. “Voluntary” means that it is the choice of the unwell person to end their life. Someone else cannot ask for VAD on your behalf or pressure you to ask for it; only you can ask for it and you must have decision-making capacity. 

For more details about voluntary assisted dying in NSW, visit NSW Health or call the NSW Voluntary Assisted Dying Care Navigator Service on 1300 802 133. 

For more on this, see Palliative care.

→ READ MORE: Making a funeral plan