Other Estate Planning Documents

 

I often hear from people who proudly tell me they don't need all the 'other documents' that I include as part of their estate plan; an Advance Care Directive and Enduring Power of Attorney documents.

I'd like to tell you I smile and nod and let them go on their way. Except I don't. I usually ask a follow-up question along the lines of:

"What's your plan if you don't finish the job off and aren't dead?" (spoiler: diplomacy isn't my strong suit).

A will only speaks after you've died. It's completely (and noticeably) silent if you're injured, unconscious, or slowly losing capacity.

Unfortunately, that's exactly the time families have some of the hardest decisions to make, while also the time you really want people you align with making choices on your behalf.

Here's an outline of the documents you'll need if you're temporarily or permanently unable to take care of yourself:

Enduring Power of Attorney

An Enduring Power of Attorney (EPOA) is a legal document allowing you to nominate a person/s to act on your behalf regarding legal, financial, and personal matters.

An EPOA is commonly used to pay bills; sign documents; manage, sell or buy property, or make decisions about where you receive care or live (this is the person who will decide which nursing home you'll go to and have access to your finances and assets).

If a person does not have capacity and does not have a valid EPOA, a State tribunal (for example, SACAT) will make an order appointing a guardian on their behalf. This means the person making your decisions may not share your values, understand your wishes, or be the person you would choose.

Appointing an attorney does not mean that you will lose control over your finances; it simply allows someone else to manage your finances according to your instructions.

Your Enduring Power of Attorney can be revoked at any time, provided you have the capacity to do so.

Advance Care Directive

An Advance Care Directive (ACD) is a formalised version of a healthcare plan.

It enables you to outline your wishes and preferences about future medical care and end-of-life treatment. It can contain all your health needs, considerations, values, and preferences, and nominates a substitute decision maker to represent you if you're unable to communicate your own wishes.

Your designated medical-decision maker can be an adult family member or friend, or someone else you trust. You should nominate someone you trust to respect your values, wishes, and preferences.

Making an Advance Care Directive does not mean that you will lose control over your medical decision-making. It simply informs your end-of-life wishes, including medical decisions, in the event that you can't communicate these for yourself later on.

An Advance Care Directive can also be referred to as a Living Will or a Medical Power of Attorney.

You can not use your Advance Care Directive to access Voluntary Assisted Dying programs. Read more HERE.

Can I complete these documents without a lawyer?

Yes, you can complete Advance Care Directive and Enduring Power of Attorney documents yourself. However, in my experience, together with Post Office DIY will kits, these are the documents that sit on people's kitchen benches for years (or tucked away in a drawer) still waiting to be completed when the ambulance pulls up or decisions are being made about loss of capacity.

Paperwork that combines legal oversight with emotional decision-making can be overwhelming and hard to navigate, and can inadvertently set your family up to fail.

For me, creating these documents as part of your estate plan is a non-negotiable because it actually gets the job done, it gives you a chance to pressure test your wishes, align your decisions with your overall estate planning outcomes and ensures you have documents that will take care of you are legally sound, prevent family disputes, avoid court interventions, and reduce the burden on others.

I don't want you to just be dead ready. I want you to be prepared for ANYTHING life throws at you.