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.

Learn more about:

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

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 help you or contact the Public Trustee in your state or territory. For more information, call Cancer Council’s Legal Referral Service on 13 11 20.

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.

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. These can include decisions about your medical care and treatment. This person is called a substitute decision-maker. They should be someone you trust and who understands your values and wishes for future care.

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. See table on the next page for more information.

Making an advance care directive

A written record of your goals and instructions for future medical care is called an advance care directive. Depending on where you live, the document may also be known as an advance health directive or advance personal plan.

Download the forms from Advance Care Planning Australia. You may need the help of your doctor or family to complete the form and ensure it is signed, dated and witnessed.

Generally, these documents are legally binding and should inform your doctors, family and carers if they need to make medical decisions for you. If your needs change, you can choose to revise or replace your advance care directive. Ask your doctor or hospital to place your directive on your medical record. You can also save it online at myhealthrecord.gov.au.

For more on this, read our Getting your affairs in order fact sheet with NSW information, visit Advance Care Planning Australia, or call 13 11 20.

Documents used for advance care planning

Voluntary assisted dying

Recent changes in Victoria mean that voluntary assisted dying for people who meet strict criteria is legal in Victoria. For more on this, see the Victorian Government’s Voluntary Assisted Dying website.

Although the laws in some other states and territories are under review, euthanasia and voluntary assisted dying are not part of palliative care. To find out more, visit end-of-life.qut.edu.au for updates.

Palliative care and end-of-life services are widely available in Australia. These services can help maintain comfort and quality of life throughout advanced cancer.

For more on this, see Palliative care.