My partner has just been diagnosed with a terminal illness - what do I need to do to ensure I can look after them from a legal perspective?
In this difficult period, it is important to make sure that you and your partner have taken appropriate steps to make sure that their best interests and wishes are looked after. There are several things to consider in order to look after your partner from a legal perspective.
Powers of Attorney
Powers of Attorney are crucial legal documents, which allow your partner to appoint someone they trust to make decisions on their behalf if they lose decision making capacity (due to their illness). There are two main types of Powers of Attorney which your partner should consider:
1.Enduring Powers of Attorney
Enduring Powers of Attorney (EPOA’s) allow your partner to appoint someone to make personal and financial decisions on their behalf. This document is enduring, meaning that your partner can direct that their attorney’s power continues even if they lose the ability to make decisions for themselves.
Despite the name, the person appointed by your partner does not need to be an attorney/lawyer. The attorney can be anyone your partner trusts, who is 18 years or older. Your partner can appoint a single attorney (such as yourself) or multiple attorneys.
Conditions or restrictions can also be imposed on the attorney’s power. For example, the attorney can be restricted from buying or selling property on their behalf. Otherwise, and (subject to any other restrictions imposed), your partner’s attorney can manage finances (including paying bills) and deciding where your partner should live (if they can no longer live at home).
2. Appointment of Medical Treatment Decision Maker
The Appointment of Medical Treatment Decision Maker (AMTDM) is a legal document which allows your partner to appoint someone to make medical decisions on their behalf. The role of the medical treatment decision maker is to make decisions about your partner’s treatment that they would have made if they were capable. This will allow you to make medical decisions on behalf of your partner which are aligned with their personal values and preferences.
If your partner does not have an EPOA or an AMTDM, the Victorian Civil and Administrative Tribunal (VCAT) can appoint someone with legal authority to make decisions their behalf. However, these proceedings can often be time consuming, and can be avoided through preparing these documents in advance.
Preparation of a Will and Estate Planning
Estate planning and preparing a Will is crucial to ensure that your partner can decide what happens to their assets when they die.
Preparing a legally valid Will is the best way to protect your partner’s interests to ensure that their wishes are carried out. Without a Will, your partner is not able to leave any guidance as to the distribution of their assets.
It is important to note that your partners’ Will outlines what happens to assets they solely own but does not cover assets owned jointly with you (or another person), such as real estate or a business. Your partner should therefore consider what type of interest they hold in each of their assets.
It is particularly important for your partner to receive estate planning advice if they:
- Have a blended family;
- Have dependents with special needs, such as issues with excessive drinking, illicit drug use, gambling or spending problems;
- Own a business;
- Have a family trust;
- Have a significant portfolio of assets;
- Wish to leave a portion of their estate to charity;
- Think it is likely that someone may wish to challenge their Will or make a claim against their estate.
Your partner should seek advice from an accountant regarding any tax implications in relation to their estate planning.
Superannuation and Insurance
Your partner should also consider their superannuation and insurance policies. These assets, along with assets in family trusts, are more complicated to distribute than assets in a simple Will.
Your partner should make enquires regarding whether they have completed binding death benefit nominations for their superannuation, or any life insurance policies held by them. These assets do not necessarily automatically form part of your partner’s estate, so it is vital to ensure that they have decided who they wish to benefit from these assets.
Advanced Care Directive
Your partner should seek advice from their doctor regarding the preparation of an Advance Care Directive, otherwise known as a living Will.
An Advance Care Directive (ACD) outlines your partner’s preferences for their future and details their beliefs, values and goals. Having an ACD means your partner can direct which treatments and care they would like or would refuse if in relation to their illness.
This article is intended as general information only. It is not legal advice. For more information, please contact the Tonkin Legal Wills and Estates team on (03) 9435 9044.