A time may come for all of us when we cannot make decisions about our medical care or lifestyle, such as whether to move to residential care. Having legal plans in place such as appointing a substitute decision maker, arranging advance care plans that specify your wishes and preferences and having an up to date will can give you, and your family peace of mind.
The information on this page is not legal advice. It provides you with an overview of some of the documents and plans you need to have in place to help you move forward with confidence.
Wills
Your will gives instructions for how your estate should be distributed after your death. Wills can be prepared by a solicitor, or you can use a ‘do-it-yourself’ kit from a newsagent or online source. However, be aware that a will is only valid if the person signing it understands what they are signing, or what is known legally as ‘mental capacity’ or ‘legal capacity’. A solicitor will determine that anyone signing a will has mental capacity. Because dementia eventually affect decision making ability, (or mental capacity), a ‘do-it-yourself’ will can be challenged and your wishes may not be carried out. For this reason, it is important to make, or update your wills as early as possible after diagnosis.
For more information about making or updating a will, visit the Law Society of NSW website or speak with a solicitor or the Public Trustee in your state or territory.
Note that superannuation is not automatically included in a will. You must make a Binding Death Benefit nomination with your superannuation fund. Seek advice from your superannuation fund directly to ensure your superannuation is distributed according to your wishes.
Enduring Power of Attorney
Enduring Power of Attorney is a legal document that says who you trust to make financial and estate decisions on your behalf should you lose capacity. Power of attorney may be called by slightly different names depending on the state or territory in which you live.
Choose someone you trust, over 18 years of age who knows you and your values and will act in your best interests to be your Enduring Power of Attorney.
Check that they agree to act as your Attorney before appointing them. You can appoint more than one person (e.g. both your children), and you can specify whether you appoint them severally, which means that any one of them can make decisions, or jointly, which means if you appointed two attorneys, both need to sign on your behalf. Make sure that other people involved in supporting you know whom you’ve appointed as Enduring Power(s) of Attorney.
You can specify the type of decision that the Enduring Power of Attorney covers. In some states Enduring Power of Attorney (financial) only gives the person authority to make financial decisions (e.g. bank accounts, property, investments). In other states, an Enduring Power of Attorney (medical) gives the person authority to make healthcare and accommodation decisions on your behalf.
Some states, such as New South Wales, have another form, called the Enduring Guardianship, by which you appoint one or more trusted persons to make decisions about services, accommodation and health choices.
The laws around power of attorney and guardianship are different for each state and territory. My Aged Care has a page with more information about this. Scroll to the section titled “More information” and you will find links to arrangements for Enduring Power of Attorney for each Australian state or territory.
Advance care planning
An Advance Care Directive or Advance Care Plan is a written document where you specify what health treatments you want and do not want when you’re not able to make those decisions. This is a legal document in some states or territories, but not others.
Talk to your GP, nurse, other health workers and family about future situations where they might have to make health decisions on your behalf (e.g. if you are no longer able to feed yourself, if you stop breathing). You can also talk to your health professional about the pros and cons of those options and then make a decision based on those discussions.
The Advance Care Planning website helps you make an advance care plan.
The video below demonstrates how and why Advance Care Plans are important.
You can also watch this video on planning ahead for people living with younger onset dementia.
It is important to think about arranging Enduring Power of Attorney and guardianship now. If your dementia is too advanced then you may lack capacity, i.e. not be legally capable, of giving instructions.
Write legal plans
- Write or ensure your will, enduring power of attorney, and advance care directive are up to date.
- Keep these documents in a safe place where they can be accessed by people you trust.
