What is advance care planning?

Key points:

• Advance care planning helps to ensure that your wishes for aged care and your assets are met, even if you become unable to make decisions later in life
• Documents to create in this process include wills and advance care directives/advance health directives, along with enduring power of attorney and enduring guardianship forms
• Regulations of these legal documents can vary between states and should be discussed with legal advisors if you are unsure

Advance care planning means that you can highlight your wishes for your health care when you are older, even if you become unable to make legal decisions later in life.

Although organising legal documents such as wills and advance care directives is important, you must also consider if you want to give someone enduring powers of attorney and guardianship.

NSW Trustee and Guardian Senior Solicitor Natalie Darcy highlighted the importance of understanding how the validity of your will can change depending on your location.

“The laws of intestacy state the order in which relatives become beneficiaries which might not be what you would wish,” she said.

According to Victoria Legal Aid, when someone doesn’t have a valid will, the law decides who receives the person’s assets after they die as they are ‘intestate.’

“Dying intestate can create significant delays and increase the chance of disputes for your loved ones, often at a time of grieving.”

What’s involved in advance care planning?

Wills

A will is one of the most important parts of your estate planning and allows you to distribute your wealth according to your wishes, although you may wonder if you really need a will. 

A will is a legal document that formalises your wishes about what happens to your assets when you die. This may include who receives what assets, if you’d like to donate to charities and what you’d like to happen at your funeral.

Creating a will can be a difficult process — it brings up conversations around death and funerals, and may even cause family disputes — but a will is one of the most important documents you should have in place. Additionally, you should review it regularly because it lets you decide how you wish for your personal effects to be divided, which may change over time.

Visit the Aged Care Guide to read more about how invalid wills could remove aged care residents’ autonomy.

Advance care directive and advance health directive

These documents outline your wishes for care if you lose the ability to make or express decisions for yourself. Knowing what an advance care directive is will help you understand how it can affect your future care.

In some states and territories, this document is called an advance care directive, i.e. Victoria, Tasmania, South Australia, New South Wales and the Australian Capital Territory. Other states refer to it as an advance health directive, i.e. Western Australia and Queensland. In the Northern Territory, this document is called an advance personal plan.  

Advance care directives are becoming more popular with older Australians because they provide you with the ability to make choices about your future care if you lose the capacity to make those choices later on. It is never too early to document your wishes in an advance care directive.

Knowing what to specify in your advance care directive may seem confusing but it doesn’t have to be. 

While legislation around advance care directives can differ from state to territory, they are legally binding. This document allows you to make your future healthcare preferences known if you lose decision-making capacity due to injury or illness.

In an advance care directive, you may want to outline your appointed substitute decision-maker, any refusal of health care and other medical decisions, lifestyle and personal decisions, if you’d want to be resuscitated or if your body should be donated to science. 

You may also wish to start considering burial options as well to ensure you have a say in your own funeral. These can be included in your advance care directive and discussed with family members if you are comfortable with the topic.

Enduring powers of attorney and guardianship

Although every Australian should have legal will documents, giving someone else power of attorney or enduring guardianship may be required in some cases. 

People who are given general power of attorney have a different role than people with enduring power of attorney. Some people may appoint a power of attorney for a specific amount of time, which either ends when they die or they become legally incapacitated, depending on your state or territory.

Giving someone enduring power of attorney means they only begin making decisions for you after you become legally incapacitated. This decision must be made while you can still mentally understand the documentation and agreements.

The role of a person with enduring power of attorney varies between states and territories.

• Australian Capital Territory — a person with enduring power of attorney will manage your personal and health care and financial affairs;
• New South Wales —  a person acting as your enduring guardian will manage your health care and make decisions on your behalf if required;
• Northern Territory — a decision-maker you’ve chosen will action your desired form of medical treatment. Multiple decision-makers can be chosen for different purposes;  
• Queensland — an enduring power of attorney will manage your matters such as health care and financial matters;
• South Australia — you can appoint a decision-maker to make treatment and health-related decisions; 
• Tasmania — an enduring guardian will manage your health care; 
• Victoria —  your appointed medical treatment decision maker will make your health care decisions; and
• Western Australia —  a person with enduring power of guardianship will make personal, lifestyle and treatment decisions on your behalf. 

As documents such as wills and legislation vary between states, visit your state or territory’s Public Trustee office website for more information about will execution and power of attorney privileges:

• NSW Trustee and Guardian;
• Queensland Public Trustee;
• Public Trustee SA;
• Victoria State Trustees;
• Public Trustee of NT;
• Public Trustees TAS;
• Public Trustee WA; and
• ACT Public Trustee and Guardian.

Where can I get support?

Visit the Advance Care Planning Australia website for information about starting the process of advance care planning. Learn more about specific regulations in your state or territory:

• Australian Capital Territory;
• New South Wales;
• Northern Territory;
• Queensland;
• South Australia; 
• Tasmania; 
• Victoria; and
• Western Australia. 

When should I get started?

Legal documents can be made whenever you are ready but must be completed before you lose the ability to make decisions. 

NSW Trustee and Guardian Chief Executive Officer Brian Woods commented on the importance of Australians making wills a priority before it’s too late.

“We’ve been writing wills for over 100 years and every day we see the impact of those who have died without a will and power of attorney or enduring guardian documents in place. There is no time like the present to get organised,” he said.

Legal documents, such as wills, provide clarification regarding your estates and can also influence your future care and assets.

Planning ahead regarding will documentation is essential — if you do not make a will and do not have any relatives, or they cannot be located, all of your estate will be given to the relevant state government.

Have you created all the relevant documents for your advance care planning? 

Let us know in the comments below.

Related content:

What should you specify in your Advance Care Directive?

Financial Enduring Power of Attorney

The role of advocacy in aged care