Estate Plan
A good Estate Plan will help make sure your wishes are carried out when you die. It can also help if you become unable to make your own decisions.
Estate Plan
Estate Planning
An Estate Plan records what you want done with your assets after your death. It can include documents such as:
• your will,
• a testamentary trust (as part of your will),
• superannuation binding nominations.
It also covers how you want to be cared for – medically and financially – if you can no longer make your own decisions. This part of your Estate Plan may be in documents such as:
• enduring powers of attorney (for your financial and personal decisions),
• appointment of medical treatment decision maker
• an advance healthcare directive (your needs, values and preferences for your future care).
The documents you choose will depend on your situation and what you’re comfortable to trust others with. It is important to get legal advice to ensure you understand what you have planned and what the documents in your Estate Plan provide for.
Last Will and Testament
A Will is a legal document that details what you’d like to happen to your assets after you have passed away. It is part, but not all, of your estate plan and helps ensure your assets are protected and enables you to appoint a guardian for your children.
Your Will is often your last message to your loved ones. No matter how straightforward your circumstances, having a Will helps everyone understand what you’d like done with your estate.
Your Will can cover things like:
• who you wish to appoint as executor to administer your estate,
• how you want your assets distributed after your death,
• who will look after your children if they’re minors,
• any trusts you want to set up, and
• plans for your funeral, burial or cremation.
Your Will is an important legal document. If it isn’t done properly, it will be invalid and may not be followed as you wished. You should update your Will after significant life events (like marriage or divorce, having a child, obtaining or selling major assets) and review it at least every 2-3 years to ensure it still accords with your wishes.
Enduring Power of Attorney
An enduring power of attorney is a legal document that allows you to appoint someone to make decisions about personal matters (such as where you live) or financial matters (such as paying bills) or both. This person is called an attorney. The power endures – or continues – if and when you are unable to make decisions. It is important to nominate someone that is trustworthy, financial responsible, and likely to be around when you need them.
It is important to understand that powers of attorney are complex legal documents. While it is still possible to complete these forms yourself, the Office of the Public Advocate recommends you get legal advice to ensure your power of attorney and other documents accurately reflect your wishes. They are legal documents and need to be completed, signed and witnessed correctly, together with your appointed attorney signing the Statement of Acceptance, to ensure that they are valid.
Preparing your powers of attorney when you are healthy, aware and in control means you can rely on having an attorney in place when you need it most.
Medical Treatment Decision Maker
Medical Powers of Attorney are now called Appointment of Medical Treatment Decision Maker forms. This document allows you to formally appoint a medical treatment decision maker, who will have legal authority to make medical treatment decisions on your behalf, should you become unable to do so.
Your appointed medical treatment decision maker has the powers set out in the Medical Treatment Planning and Decisions Act 2016, subject to any limitations or conditions you include in the appointment form. While it is still possible to complete these forms yourself, they are legal documents and need to be completed, signed and witnessed correctly, together with your appointed decision maker signing the Statement of Acceptance, to ensure that they are valid.
If you do not have a valid Appointment of Medical Treatment Decision Maker form, the law sets out who will make your medical treatment decisions by default. This default decision maker may not be the person you would ordinarily wish to make your medical treatment decisions.
Preparing your Medical Treatment Decision Maker forms when you are healthy, aware and in control means you can rely on having your decision maker in place when you need it most.
Advanced Care Directive
An Advanced Care Directive is a legal document that sets out instructional directives (such as about treatment a person consents to or refuses) and/or a values directive (which will describe a person’s views and values). It allows a person to document their preferences for future medical treatment, should they lose decision-making capacity, including their values and preferences to guide future medical treatment decisions, or record instructions consenting to or refusing specific types of treatment.
You can also include your wishes for organ and tissue donation within the Advanced Care Directive. The Victorian Department of Health provides more information about Advanced Care Planning here:
If you complete and sign an Advance Care Directive, this document will be regarded by medical practitioners over and above the decisions of the person nominated in your Appointment of Medical Treatment Decision Maker form in relation to your medical treatment.
While it is possible to complete these forms yourself, it is an important document and needs to be completed, signed and witnessed correctly (including being witnessed by your Registered Medical Practitioner), to ensure that it is valid.
Binding Superannuation Nomination
Super doesn’t automatically form part of your estate, which means that it does not automatically get distributed according to your Will. Super has its own distinct legal structure where the trustee acts in accordance with the Trust Deed. Accordingly, your super needs to be considered separate from your Will when putting together an estate plan. To ensure your wishes are met, it’s important to make a valid binding death benefit nomination to advise how you would like your super to be distributed.
A binding death benefit nomination is a formal written direction provided from a member to the super fund, to tell the fund who you want your account balance paid to in the event of death. It is a legally binding document. A valid binding nomination will bind the Trustee to pay your entitlements on your death exactly as you specify. Your nomination will only be valid and binding if it is made in accordance with the relevant requirements which differ between funds. A binding nomination comes into effect from the date the fund accepts it and usually expires three years from the date you sign the form. You can change or cancel your nomination at any time.
You can set up or change your binding nomination by completing a valid nomination of beneficiary/ies form for your super account type – these are generally available on the website of your specific super fund.
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