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. Having capacity 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 doctor and lawyer.

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Making a will

A will is a document that records who you would like to receive your assets (estate) after you die. It 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.

When you die without a will, you are said to die intestate. Your assets are distributed to family members according to a formula provided by the law. 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.

To make a will, it is best to ask a lawyer or contact the Public Trustee in your state or territory. For more information on preparing a will, visit your local Cancer Council website or call 13 11 20.

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 or who understands 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’.

In some states and territories, the advance care directive has a different name, such as health direction, advanced personal plan, advance health directive, or refusal of treatment certificate.

This document may not always be legally binding, but it does provide a record of your wishes for doctors, family and carers to consider.

For more information, read Cancer Council’s Getting your affairs in order fact sheet – call 13 11 20 to check whether a printed version is available in your state or territory, view it online on your local Cancer Council website, or download the NSW copy from this page.

Legal advice is also recommended. You can start by contacting Cancer Council’s Legal and Financial Referral Service on 13 11 20.

This information was last reviewed in December 2016
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