I was speaking to my friend yesterday and she told me that she has a living will in place to ensure that her best interests are protected if she was to lose her decision making capacity. She told me I should also get one as I have started becoming forgetful. What is a living will?
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Answer by Julia Savage of Newcastle Legal, Hamilton NSW 2303
- A living will is a term that is gaining popularity in Australia. However in Australia a living will is known as an ‘enduring power of attorney’ or ‘appointment of an enduring guardian.’ The names of these documents tend to change depending on the state or territory.
- For example in some states they are known as ‘enduring power of attorney (financial)’ and ‘enduring power of attorney (medical).’
- Powers relating to medical treatment and financial affairs are usually separated into two distinct documents.
- Each document gives powers to a person or group of people (the attorney or attorneys) to be able to make decisions on your behalf when you are no longer in a position to make decisions for yourself for example due to accident or illness.
- The instructions include what is to happen to you in relation to:
- medical treatment;
- quality of life;
- prolonging life;
- your financial affairs;
- management of your assets; and
- guardianship of dependent children.
- The word ‘enduring’ means that its power continues after the appointer has lost the ability to make their own decisions.
- The document may be drafted so that multiple attorneys must act together or may act individually.
- It is possible to draft some restrictions to the powers however as there are so many variables in life the directions and powers cannot be too specific. For that reason it is essential that the person you appoint as your attorney is trustworthy and responsible.