Protect your wishes: Estate planning and medical directives with Eleanor Davis

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[00:00:00] Kate: So thank you for joining to today’s episode of Talking Blood Cancer. Today’s episode is, it’s a little different. We’re not interviewing a patient nor are we interviewing a carer, but we are interviewing someone who is as equally as fascinating and that who is with me today is Eleanor Davis.

[00:04:20] So Eleanor, thank you for joining.

[00:04:22] Eleanor: Thank you for having me on, Kate. It’s a pleasure to be here.

[00:04:24] Kate: Oh, we’re so very lucky to have you on today. And, today is an interesting and very important topic that we’re discussing and we’re discussing estate planning. Well,

[00:04:34] maybe before we jump into that, can I ask you to introduce yourself to the listeners? So a little bit about who you are, where you work and what state you’re in.

[00:04:43] Eleanor: My name is Eleanor Davis and I am a Senior Associate and Practice Manager with David Davison Associates. I’ve been a lawyer for about 12 years and I’ve mainly worked in the area of wills and estate planning. Our firm is in Victoria and I will precis today that the information that I’m giving is basically Victorian information, but because all the states have a kind of reciprocate or reflect or have some uniformity to them, some of what I’m saying applies generally to all the different states, but each state does have its own idiosyncrasies which have to be taken into account.

[00:05:21] Eleanor: So,

[00:05:21] you always need to get advice for someone who knows how to do estate planning in your particular state if you have any questions.

[00:05:28]  Kate: Thank you. That’s some really good sound advice and I think it is important for people to remember that. And, it’s the same as we have when people ask questions about treatment and diagnosis. It is and can vary across all of the countries. So it is best to seek your own state advice.

[00:05:44] Eleanor, a lot of the time we have the conversation with people because they’ve either been just diagnosed or they have heard the news that they’re potentially needing to head into palliative care now. And the question that always does come up is, do you have a will?

[00:05:59] Have you done any estate planning or do you have any enduring powers of attorney? Is there a good time to begin and looking at estate planning?

[00:06:10] Eleanor: if you have a diagnosis, you absolutely need to be turning your mind to what will it look like if I die or what will it look like if I lose capacity to make decisions about my own affairs and where I want to be, how I want my end of life to look like. However, you can do it anytime.

[00:06:31] I think that as a general advice to people, if you’ve got assets, whether it be, super or property in your own name if you start a family, there are lots of trigger points in life where I think you should stop and think, hey if I were to die, or if I had perhaps, an accident or had a, was diagnosed with a serious disease and, I didn’t have capacity anymore.

[00:06:55] What would I want to happen?

[00:06:56] Kate: hmm.

[00:06:57] Eleanor: And how do I want to make it easier for the people that I love? And that’s what we look at with estate planning

[00:07:03] Kate: That, and that’s so true. You’ve, you hit a really good point there is that you don’t have to have a diagnosis. It’s something that everybody should begin to think about. And a lot of the people, there’s that fear and that block. Do you come against that? People think, Oh, if I’ve written it, or if I do it, if I instruct, it means it’s going to, you know, the end is going to be near.

[00:07:20] Eleanor: There’s a lot of touching words go through. And, I think some people have, there’s different kinds, like some people believe if they don’t do their will, and they don’t turn their mind to it, then that bad luck won’t happen. And other people seem to think that if they do their will, that’s then the bad luck won’t happen.

[00:07:36] They’ll have done it for no reason. So I think it’s, it seems to cut both ways where people get worried, but look, it doesn’t have to be a scary or awful process. I’m not going to pretend that we don’t talk and investigate what a person’s death and the effect that will have on their assets, happens, but we can normally do it in a relatively cheery, kind, thoughtful way that where we, have a chat about some of the things that actually happens, but there is, it’s never a question of if I die,

[00:08:05] for every person?

[00:08:06] It’s always when, so that’s a reality that, you know if you can face up to and have a chat with someone and then you can put that away for a long time. And a lot of clients walk out saying that they feel like they’ve got peace of mind now and there’s kind of a relief from that person just by having gone through this process and turn their mind to it.

[00:08:26] And that’s what a professional does. They’re supposed to help you out with that. You don’t have to feel the pressure of trying to work it all out yourself. That’s why you’re getting some advice.

[00:08:34] Kate: then they’ll help guide. Where’s the best place to begin? Where should we begin in this conversation? Where would you direct someone to start?

[00:08:43] Eleanor: As a lawyer, I would suggest that you go and visit a lawyer, but a lawyer would say that. I think the best thing to do is to get some advice, particularly if you’ve got some assets and want to appoint the people that you trust to put in place to look after your assets and to look after the people that you love.

[00:09:01] And the same with when you’ve lost capacity. Doing it yourself, you can risk making a mistake that means that you have consequences that were unintended. So my first advice, and we can talk perhaps at the end about some of the other options, my first advice is to go and seek some legal advice and they will talk to you about estate planning. Which is general term.

[00:09:24] Kate: Yeah, it is.

[00:09:25] Eleanor: And when you visit a lawyer about your estate planning, you’re basically, you know, you’re not just looking at your will. So a will is a very small part of what estate planning is. When we look at estate planning, we’re looking at what happens when you die. We’re also going to look at what happens if you lose capacity to make decisions for yourself.

[00:09:45] And then we look at your estate as a whole. And because your will can only deal with what you own in your sole name, a will is only a solution to those assets. Assets that you hold jointly, assets that you hold in a trust or a company have to be dealt differently, dealt with in a different way. And so estate planning encompasses all of the different tools that we have to deal with all of those different assets on your death or when you lose capacity.

[00:10:15] Kate: Yeah. Yeah. That’s really interesting. And like you mentioned that, so say if you own a house with a partner that you are saying has to be dealt with differently, is that,

[00:10:25] Eleanor: Yeah, that’s right. So,

[00:10:26] if you own property, there’s two different ways of owning property. So, we’re talking about real property at the moment, so real estate but this often applies to bank accounts too and another property that’s owned jointly. So, if you own property, let’s say your partner for now with your partner and you own it, in the way that’s called jointly, then it actually doesn’t run through your will.

[00:10:48] If you die and you own joint property, it runs by what’s called the law of survivorship. And that just means the last man standing wins. It, because it can be transferred directly to the survivor of

[00:11:00] the owner of that property. And the same with bank accounts, if there’s a husband and wife joint account, generally that if one of them passes away you’ll find that the survivor just takes over and that person’s name is removed.

[00:11:14] And it actually, that rule applies to anyone, sorry, it doesn’t. It can be anyone on title, so if your children are on title, a friend is on title, and you own it as joint tenants is what it’s called, then the law of survivorship will apply, but you can also own property in a manner of holding that’s called tenants in common, and that simply means that you own a portion of the property in your own name.

[00:11:39] So you might own 50 percent with your partner. So you might have 50 percent each or it might be with your brothers and sisters, you might all have say a quarter each if there’s four of you or a third each if there’s three, or it can be in different proportions. Some might own 25, another person 75. And if you own that property as tenants in common, it actually does run through your will. And that share, say your 25 percent share can be gifted through your will because you own that in your sole name.

[00:12:05] Kate: Right. Okay.

[00:12:07] Eleanor: So you. All of these things are really important in your estate planning. You can imagine that these are the kind of tricks and traps that a solicitor is looking for to understanding how we’re going to put together your estate plan.

[00:12:20] Kate: Yeah, because someone may put that and it I’m just thinking, and I know we said we’d think about other things, the way people could do this is those will kits, someone might go, Oh, write it out. And I think, Oh well, I’ll leave it to my husband, you know, a house that we own, but you don’t need to do that because it’s, it would just be passed on over.

[00:12:35] Yeah.

[00:12:38] Eleanor: That’s right. Or, they might own that property as joint tenants with their husband and it could be perhaps like a second partner. And they might say, I want to leave it to a child from my first relationship. But if that property is owned as joint tenants, that’s never going to go to that child.

[00:12:53] It’s always going to go to that surviving partner. So there’s lots of things to think about. You know, you’ve got to be, how do you own these things? And it’s the same with families that might have some assets in a family trust. You can’t give, if the family trust or even the super fund, owns a property, you can’t gift that away because it’s in your will.

[00:13:12] Kate: Yeah.

[00:13:13] Eleanor: Your will can’t deal with those assets that you don’t own.

[00:13:16] Kate: Oh, and you mentioned super. Now people often, it’s something that people often forget about, isn’t it? Superannuation.

[00:13:24] Eleanor:Yes, and it’s absolutely a part of your estate planning too, because, death triggers what happens with your super.

[00:13:29] Kate: Mm, how interesting.

[00:13:31] Eleanor: Not always, super doesn’t like automatically form part of your estate. Unless you were to perhaps do a binding death benefit nomination, or if you didn’t leave any family members that qualify as dependents, then the trustee of that super fund may choose to pay your death benefit into the estate, but that doesn’t automatically happen.

[00:13:53] So you can elect to have it paid to your estate and then it will form part of your will and it will be distributed in accordance with your will.

[00:14:01] Not automatic. You might have a death benefit nomination in favour of your spouse or partner, someone living with you in a dependent relationship.

[00:14:11] And so then that money would actually travel directly to them and have nothing to do with the will.

[00:14:15] Kate: Well, there you go. And when you’re thinking of, going to a lawyer and, getting things put into place, are there certain people that you should be considering? Cause obviously it’s not just your assets, but you’re bringing in assigning certain jobs and important roles into your estate planning.

[00:14:33] So what would those roles be?

[00:14:35] Eleanor: So there are a couple of different roles. So the first role in your will that you’re going to appoint is the person to be your executor. So your executor is a person that you trust and you’re going to trust them because they are going to carry out the terms of your will. And their main job is to prove to the court that you are the person that you are, and that you have died, and that this is your last will.

[00:15:02] And when the court provides them with what’s called a grant of representation, that person then has the power to step into the shoes of that deceased person, and to gather in all of their assets, and then just pay all the debts, and then distribute the net value of those assets to the 

[00:15:21] Beneficiaries that are specified in the will. So it’s a really important job

[00:15:26] and it’s got to be someone that you trust. It doesn’t have, they don’t have to be a lawyer or an accountant or someone who has dealt with this type of thing before because it’s the executor’s job to get advice, professional advice, but you want to know that it’s someone that you trust to do that job.

[00:15:43] Kate: Do they have to be in the

[00:15:44] country?

[00:15:44] Eleanor: a It’s much better if they’re in the country, it can be outside of the country, but there are certain extra complications and obligations, including the fact that they might have to give what’s called as surety guarantee. So give money to the court to ensure that they don’t run off with the money from the estate.

[00:16:02] So there is extra complexity there and I would, I would urge everyone to make sure their executor is in Australia at the very least, and preferably in the same state.

[00:16:10] Kate: Yeah, there you go. That’s some good advice there. And cause who would oversee to ensure that, you’ve hopefully you’ve chosen a trustworthy person, but who oversees to ensure that they execute the wishes and what’s written in the will? Is there anybody, or is that

[00:16:26] Eleanor: yes and no. So there’s no specified person, only that the executor has the job of distributing money to the beneficiaries named in the will. And the beneficiaries will have a copy of the will and the beneficiaries will generally have a good understanding of what’s in the estate and what’s coming their way.

[00:16:44] And certainly, if what’s coming their way doesn’t meet their expectations, they’ll be raising some questions. And it’s the Supreme Court in each state that has jurisdictions to oversee any disputes or issues with administering an estate. So certainly another part of a lawyer’s job in this area is helping disgruntled beneficiaries or removing executors who aren’t doing a good job or making applications to the court to ask the court for directions.

[00:17:12] on when the executor is unsure or if there’s a question that they don’t understand or if the will is uncertain in any way, so the Supreme Court really has the jurisdiction to watch, but someone has to make an application to do that. So there has to be some kind of complaint.

[00:17:28] Kate: So you’ve mentioned some really important things in there. And I would, and as I sit here and I think there’s people that going, do I really need it? What does life look like? Or well, what does the life look like for the loved ones left behind if a will’s not done.

[00:17:43] Eleanor: That’s a really good question. If you don’t have a will, in each state of Australia, there is legislation that provides a formula for how your will is to be distributed. I should say right away because one of the most common questions we have is, or I guess a common concern that we have by clients is, if they don’t leave a will, does that mean the government gets their money?

[00:18:07] And

[00:18:08] Kate: I’ve heard that before.

[00:18:09] Eleanor: the answer to that question is,

[00:18:11] Kate: Yeah.

[00:18:12] Eleanor: No. There is some very limited circumstances that happen, but each state has a formula that provides for how that money is to be distributed. Generally if you have a partner or a spouse and there are no children, then that money goes to that partner or

[00:18:29] spouse. The formula actually,

[00:18:32] allows for if you’ve got children from a previous relationship, how it’s going to be divided between them and your current spouse. So it allows for lots of different circumstances. But when that happens I don’t usually find very many happy people with the lot that they’re getting.

[00:18:50] I think it’s still much better to go and see a solicitor and turn your mind to how you think that your estate should be distributed. Because you’re the person that understands the moral obligation that you have to give to the people who are dependent on you and the people who love you and to ensure that they’re looked after.

[00:19:10] And I’m not sure that a formula under legislation really does that in the same way that a person can do, but certainly there is a default or a backup.

[00:19:19] Kate: Yeah, there’s a backup and I talk to a lot of people and I’m sure you do in your, in your own line of work as well. And a lot of the thing that I come across is how people, we as humans, we naturally, we like control. And this is a way to control a really important part of our life and our journey.

[00:19:41] And it’s not something that people always want to talk about or want to touch on because it’s a really scary and confronting topic. But I think the message that I’m getting from you, what is left behind when it’s not done, can be really impactful on top of grief already. Yeah.

[00:20:01] Eleanor: I think so too. When you lose a loved one, there is that underlying grief that happens no matter what the circumstance of the death, but then also to be lumped with a mess afterwards and some uncertainty can really just add to that stress. And we see people presenting with stress in all different manners and to try and help them and guide them through them when a will would have just made things so much more simpler and be really clear what the deceased had actually intended and wished for makes it a lot easier.

[00:20:39] And I think it also just goes to show, there is some kind of solace in knowing that person thought about you in that way. Not that a will is a particularly emotional document, it’s a very dry legal document, it doesn’t say anything kind or nice about others, but it’s just saying, I thought about this, I thought about you, I thought about whom I love, and how you’re to be looked after in the case of my death. But it can be very stressful for families.

[00:21:07] Yeah, trying to access

[00:21:08] Kate: and it’s especially, you know, a funeral and things like that they cost a lot of money and money needs to be accessed quickly because people need to be buried quickly. Right.

[00:21:19] Eleanor: So the first thing to know is that once a person dies, as soon as the bank finds out that they’ve passed away, any bank account in their sole name, so remember we’ve got that distinction about joint bank accounts and bank accounts owned by one person, sole person, so any names in the deceased will be frozen.

[00:21:38] It’d be frozen in that money can still come in, so if there’s money due to come into and be credited into that account but any direct debits, anything further just will not come out of that account. But, because the funeral account normally needs to be paid more quickly, Then it takes to get probate ’cause we can’t get a grant representation by the Supreme Court without a death certificate and they can take some time to issue.

[00:22:04] If you have lost a loved one and you are left with the funeral bill, you can take the funeral invoice and you can take a copy of the death certificate form that has been completed by the funeral director to that person’s bank, and the bank will pay that directly without you having any kind of representation.

[00:22:23] That’s really useful, but then. Really what kicks in for people after that is in a few weeks later when they don’t have access to any money and they’re reliant on that deceased person for income, for funds, for payment of school fees, for your groceries. It’s, it, there’s that period after when it all kicks in when you don’t have access to that money and that’s when things can be thought about, joint bank accounts can be opened beforehand.

[00:22:49] There’s lots of different ways of thinking about what to do on your death to make sure that, your loved ones aren’t stuck, while we’re waiting for a grant of representation with the court, while we’re mucking around with the will and trying to, get that through if there’s any issues.

[00:23:01] Kate: Um, and that’s a really good thought as well, because you’re right. Like, And again it, it comes down to that. These are really tricky conversations, but it’s having these conversations so that if, and when that time does come, the blow is a little less. And everybody can speak, especially at the moment, finances are really hard and we know the pinch is even harder at the minute and it’s.

[00:23:24] If we can not make that harder let’s not by having a conversation beforehand. So

[00:23:31] yeah.

[00:23:32] Eleanor: I think it’s easier to do it before it’s mixed with that terrible grief of the death of a loved Yeah, very much so. and then what would the next layer of estate planning look like? Would that

[00:23:44] I think we just looked at two we talked about the executor, so that role, and then also, I should say that there’s also beneficiaries.

[00:23:52] Kate: so we just spoke about beneficiaries and then you mentioned that’s a really important role. I think,

[00:23:59] Eleanor: so we’re talking about

[00:24:01] Kate: yeah, we’ve talked about it.

[00:24:03] Eleanor: and then we haven’t spoken about beneficiaries. So, I think we should have a brief chat about that. So, who are your

[00:24:08] Kate: Yeah.

[00:24:09] Eleanor: And I think that’s a really important question for any person looking at their estate planning. So, The law. protects people to a certain degree.

[00:24:19] So, the first thing to know is that a well maker can do whatever they want. So, You can leave your money to whomever you want to leave your money to.

[00:24:28] Kate: Your dog.

[00:24:29] Eleanor: Absolutely, not a problem. But, if you perhaps leave out people who are dependent on you, for their livelihoods. Say you gift all your money to charity and you leave behind a partner and children under the age of 18 and do not leave anything to them and they’ll be out on the street.

[00:24:48] The law will actually intervene if they make a claim on your estate. So there is this idea We have a moral obligation on the people who are dependent upon us. So even though we can, and it might be, there are some plenty of people that come to me who don’t have a partner and children and can actually, leave their estate however they want, and it’s very unlikely that there would be some kind of claim.

[00:25:14] Most of the time, The person making their will has to turn their mind to who they have a moral obligation to. And the law really says that is your partner, and the law makes no distinction anymore between a married person, a de facto relationship, or a same sex relationship.

[00:25:33] So it is your partner that you have the moral obligation to. And then next, you also have a obligation to any child of yours that is under the age of 18 or if they’re over the age of 18, if they have a sort of disability that means that they cannot, take care of themselves. So they would be a person who is dependent upon you.

[00:25:55] Kind of next under that rung is your children who are independent from you, you know, who have jobs and have financial means and aren’t dependent upon you in some way. So there is this hierarchy that the law looks at and it goes even further, but I think for our purposes, that’s enough for us to deal

[00:26:12] Kate: Could I just ask, because I know I have come across, and it is more and more at the minute, is grandparents who have their grandchildren

[00:26:20] Eleanor: yeah,

[00:26:20] Kate: where do they sit in the above category or

[00:26:25] Eleanor: the list and it really depends. So the most important part is dependency. So the law need to look after a grandchild. If that grandchild has lived with you as a dependent in a child type relationship, otherwise the moral obligation isn’t necessarily that you have to look after them.

[00:26:48] Plenty of grandparents do come in and say, my kids have got enough, I want to make sure that I’ve got enough. Leave some money to my grandkids for whatever purpose, whether it’s education or a bit of fun to remember their grandparents by after their death, certainly they do that.

[00:27:01] But the moral obligation doesn’t exist between the two in exactly the same way that it does between a parent and a child or a partner or person with a disability a child with a disability.

[00:27:13] Kate: right.

[00:27:14] Eleanor: So We were just talking about beneficiaries and going back to that understanding that’s the people that you are wanting to divide your estate to.

[00:27:21] So these are the people that you have a moral obligation to. And I should say that the other thing that people do, make sure that they leave, some money to their partner and to their children, but also they do consider charities as well. So it might be, it’s fine to give to charity, you just have to make sure that you’ve looked after those people that you have a moral obligation to as

[00:27:40] Kate: Makes a lot of sense. It does make a lot of sense. So those are the main people within a will, eh, the person. who owns the will and then the executor and then the beneficiaries. Is that all that’s included in the party or, else that you can put in within a will?

[00:27:56] Eleanor: they’re the main actors and sometimes we might create a trust in a will. Potentially if you have a child with a disability that will have an ongoing disability for life and may not be able to manage their own funds, we might create a trust and you would nominate a trustee. So, a person to take care of that trust and that person might be the executor but it might be somebody else as well.

[00:28:20] So, That’s a different And sometimes we also create a trust to put that money in, not only if you’re a person with a disability, but it might be because you have issues managing finances or drug and alcohol addiction. And on the flip side, we might create a trust like that. When you’re a person who, because of perhaps your profession, such as doctors or lawyers or accountants or financial advisors, that you’re going to be sued.

[00:28:47] Small business owners too, so you might quarantine that money away and so you might prepare, have a trustee, a separate trustee for those to look after that money for that intended beneficiary. So, there’s a few different things, but your main roles are always going to be appointing your

[00:29:02] executor and then who are your beneficiaries and what do I own in my own name to give

[00:29:08] away.

[00:29:08] Kate: So there’s some really good things to think about for people that are listening today about what thought process should go in before connecting with a lawyer as a, what you have, who you want to represent you and who, as you said, are your beneficiaries. Yeah.

[00:29:23] Eleanor: And backup people, because if you might have a good idea of who your executor is, but what happens if you have something happens to that person? So, You want to have a backup person, backup

[00:29:32] Kate: And do you approach the potential executor to say, Hey, this is what I’m thinking. I’m thinking of putting your name down. Should you tell people that you’ve chosen that person?

[00:29:44] Eleanor: I

[00:29:44] Think that’s a really good question and I think that depends on the family dynamic. you don’t have to advise your executor that they are your executor. You could potentially appoint the Prime Minister and I’m sure they would not accept but That person doesn’t have to know that they are your executor, you just have to pop them in the well.

[00:30:03] You want to make sure it’s someone who’s going to accept, and I do find that most of the time an executor, there has been that conversation, but there’s no obligation to do And that’s different actually from an attorney, which I know we’re going to talk about a little later on today.

[00:30:20] Your executor has to be someone that you trust, but they don’t have to know that they’re appointed. But I think it’s a really good idea that we let people know that they are executors and where to find our will if something happens so that they can jump into action if you pass away.

[00:30:35] Kate: And is it recommended that, say, if you are in a partnered relationship or a de facto relationship, that both of you do it at the same time? Or,

[00:30:46] yeah, or could you just go out on your own and do it by yourself?

[00:30:50] Eleanor: We have both. I think it’s always a good idea that you do it together and that you’re on the same page and that there is transparency between you. Normally that is easier if there’s either no kids involved or they’re children from the same relationship. But sometimes I find If there’s a different family dynamic, if you’ve got children from another relationship, sometimes those couples prefer to make will separately.

[00:31:17] and that might be because they have differing views on how they should distribute their estate. And if that’s the case, they’ll actually need separate lawyers. So if they can’t agree on how things are going to be divided between, the children from the first relationship and children from the current relationship and each other, then they should definitely get separate legal advice because otherwise the solicitor is in conflict.

[00:31:39] But most of the time, even if you do have blended families, most of the time, I find that my clients have a generally good idea of an agreement of how they want to distribute the estate and they come in and we can offer some extra ideas and some mechanisms that they may not have thought about before. But most of the time they come in, having a good understanding and having that conversation beforehand.

[00:32:03] Kate: right. And my other question is, how long does it take? Like from you engaging with a lawyer to then, would you say finalizing the estate? How long does that take?

[00:32:12] Eleanor: That is a really good question. So firstly, if you are unwell or on your deathbed and the lawyer is engaged, they actually have an obligation to do it. as soon as

[00:32:23] possible, urgently. Occasionally we get a call in and it could be a current client who’s really sick but want to remake their will and they’ve been told that they only have a couple of days to live.

[00:32:34] My obligation is that I need to leave the office and go there now and get those instructions and draft it and get it done and return the same day or the next day and get that done. Generally though, it takes two to six weeks for your average will with, no complexities. So it shouldn’t take too long.

[00:32:51] But then there are very complicated estates planning that can go for months as well. So it really depends. I’m sorry, that’s a lawyer’s answer. It depends.

[00:33:01] Kate: No, but I think it’s a really great insight into, best not to leave it until the last

[00:33:07] Eleanor: Yeah, please don’t leave it too late. It’s very stressful having to quickly work things up on the last minute and to change and the other thing that’s really important about your will is you don’t want to leave it to the last minute because even if you haven’t passed away, If you lose capacity or perhaps you’ve got dementia or perhaps you’re having to take a lot of pain medications that means that you can’t think properly or think through executive and cognitive functioning in the same way, you may not actually have capacity to make your will.

[00:33:37] So another really important and fundamental part of making a will is having the capacity to do so. capacity is really important for both wills and powers of attorney and the test for capacity for making your will, the legal test and the legal test for capacity to make your powers of attorney are

[00:33:56] Kate: are they? I did

[00:33:58] Eleanor: So. It’s really important that we’re kind of looking at different things each time, so you definitely don’t want to be leaving that too late for your will, because if you’ve lost capacity, then you can’t make

[00:34:08] your will. and we will certainly, if you’re unwell, if you’re over a certain age, and I know that’s, Very ages, but it becomes like a matter of course, you’re over a certain age, if you’re unwell, if you’ve got certain diagnosis, we will always be writing to your doctor to check that you’ve got capacity to make your will.

[00:34:25] Kate: I’m guessing that would be very time sensitive if it was at the pointy end of

[00:34:28] Eleanor: that’s right. So, you know, you are rushing in speaking to nurses, speaking to family, trying to work out how are they finding them, what are their experiences with that person?

[00:34:36] Kate: Yeah.

[00:34:37] Eleanor: And there are plenty of times that a lawyer refuses to make a will at that point too because they’re just concerned about capacity

[00:34:43] And their legal obligations not to make a will if you know they’re in doubt.

[00:34:47] Kate: So I think the general consensus would be is sooner rather than later, is what I would be, is what I’d

[00:34:54] Eleanor: And, and look, certainly if your listeners have you know, and they’re supporting family members and friends who listen into the podcast. If you have someone that you know that have had a recent diagnosis, then they should be going and seeing their lawyer just to make sure everything’s in order.

[00:35:09] Even if you’ve done your will, I think most lawyers would jump on the phone, have a look at your current will and say, is there anything you want to change? Or if they say, I just want it to be left to my partner and kids, the solicitor can just check that’s actually what’s happening.

[00:35:22] and you can feel relief or have some peace of mind about. What that looks like,

[00:35:28] Kate: And what would be the next component that you would suggest or you’d walk a client through to consider and look at?

[00:35:35] Eleanor: in terms of estate planning generally. So, I think we would always, so once we’ve covered off what happens with your will, and I think for today’s purposes too, we won’t go too much into families that have Trusts and companies and assets held by them, but I would just recommend that if you do have those entities in place and that kind of set up with your accountant, you should, and small business, you should definitely see a lawyer when doing your estate planning.

[00:36:03] The next thing I always look at is, alright, so we’ve looked at what happens when you die, and you know, we’ve sorted out who’s going to be your executor. We’ve sorted out who your beneficiaries are and what you own. Then we kind of say, well, we don’t always just die. We often, there is this period beforehand where we lose capacity.

[00:36:22] And when you’ve lost capacity, you need someone to make decisions for you. basically need to give someone the same power that an executor has. So again, it’s a person who steps into your shoes and does the things that you would normally do. So in. Victoria. There are actually three separate powers, which we call the Powers of Attorney.

[00:36:47] So I’ll talk about them. But wanted to say that the first thing about these Powers of Attorney is you’re wanting to appoint someone that you trust to look after you. And to make the decisions, if you’ve lost capacity. And capacity can be lost in lots of different ways. So, I think most people think about dementia and think about that happening to them, 70s and 80s to have that, and that cognitive decline.

[00:37:14] However, we have to remember that there are many drugs, diseases, and even acquired brain injuries from, say, an accident, or a stroke, or a car accident that could actually change the way that our brain works in such a way that we can’t manage our affairs or look after ourselves financially anymore.

[00:37:37] The planning isn’t just about. If you’ve been diagnosed with a specific illness, but also these things can happen to us without

[00:37:44] notice and we can lose that capacity. So, it is particularly hard with younger people to get their head around that. But I think that. Having your power of attorney is just as important as having your will prepared.

[00:37:58] There are three powers,

[00:38:00] Kate: And what are

[00:38:01] Eleanor: the financial power is one that goes across all states, and sometimes in the different jurisdictions, so in the different states and territories, they might have slightly different names,

[00:38:12] to access all of your money and accounts.

[00:38:16] They can access your bank account and they can do also anything that you might need to do legally. So, they could sell your house. It might be decided that you can’t live at home anymore and so that they would sell your house. They can put down your dog. Literally, they can step into your shoes and make those same decisions that you would make.

[00:38:36] And you want to put someone in that position who you know will make a similar decision for you and act in your best interests. Or shares a similar value system to you so that they would act in the way that you would want them to act.

[00:38:49] Kate: So I think that it would be important to have a conversation with the person that

[00:38:54] Eleanor: Definitely. And unlike an executor, an attorney has to agree. whenever you’re preparing one of these documents, they have to sign their acceptance to say, Yes, I agree to do this for this person because it is a huge task and often both, an executor’s task and also the task of an attorney is a thankless

[00:39:13] job.

[00:39:14] That person, often isn’t thanked or they have the burden of managing that person’s affairs and people commenting and being critical of it, but they’re just doing the best that they can, and obviously it’s hard to do that with an audience. The financial power of attorney can also sue someone on your behalf too, which is a really interesting power.

[00:39:35] I must say. I don’t know, this is, if you fell down in the supermarket and were injured and you’d lost capacity, then potentially they could sue the supermarket or the insurance company or whoever is to blame in that situation on your behalf. We like to think of it as a financial and legal power. The next power is actually a really interesting power and I think Often got overlooked

[00:39:57] Kate: And what would that be?

[00:39:58] Eleanor: and in Victoria, we now call that the personal power.

[00:40:02] I know in other jurisdictions It’s called the guardian So you need to have a think about this power as being the same kind of power that a parent has over a child

[00:40:12] That person would decide where you live. So they could say, all right if it was a child for their parent or mum can live at home still, we can get carers in if the finances allow to look after her because she can stay at home and that’s where she feels more comfortable.

[00:40:27] Or it might be that there’s been several medical assessments and that person, it’s dangerous for them to live at home. And that person says, okay based on these assessments, mum now needs to be placed in some kind of care. And so. not only are they deciding where you live, but they also decide what diet you have, what culture or religion or values you follow.

[00:40:49] know that there are plenty of I’ve had Jewish clients that want to make sure that they go into a nursing home that keeps kosher. You want to make sure that you’re appointing a power of attorney who understands that the importance of your cultural and religious values and put you in places that follow those. So, It’s really important that you have someone who understands who you are and perhaps is part of your community or a family member or a friend that you can trust.

[00:41:13] Kate: Goes to show the importance of a conversation, right? Like this part very much sounds that there needs to be an inclusion and conversations happening when making these decisions.

[00:41:23] Eleanor: Absolutely.

[00:41:24] Kate: Yeah.

[00:41:24] Eleanor: The personal power of attorney also has another power that I think is really is very important and that is the power to prevent a person from visiting you.

[00:41:36] When used correctly, that’s a really important power because sometimes there might be a friend or family member who is toxic or has been estranged and it is not appropriate for many different kinds of reasons that person doesn’t visit this person in the nursing home because they’re vulnerable to that person now. but also In my practice, that’s where we’ve often seen the abuse happen as well of that power where, brothers and sisters, siblings, family, friends are preventing people that they don’t like from visiting that person for more personal reasons and not for reasons that are in the best interests or the well and preference of that person that they’re looking after.

[00:42:14] So what we call the principle. The final power is the Medical Treatment Decision Maker. And that’s what it’s called in Victoria. It’s often called, it’s a medical agent or a medical power of attorney in some of the other states. And I think that one is a bit obvious in terms of it’s, you’re deciding the medical treatment for the person that you have been appointed to look after.

[00:42:37] And again, like to give some examples of how that power works. So If that person has lost capacity, so remember that this person has to lose capacity to be able to make those decisions for themselves, and that is when your medical treatment decision maker comes in and makes those decisions for you.

[00:42:54] So it might be that they decide that you should have surgery, or that you should have a certain drug treatment, or that you should be on a certain drug trial

[00:43:03] Kate: I know not for resource, that potentially is a different thing. Can the medical advisor. put in not for resus request or no? Is that different?

[00:43:13] Eleanor: So the do not resuscitation request. can be done by yourself when you’ve got capacity under a different document. And we might actually get to that after the medical treatment decision maker, but they can decide. They can decide to turn off your life support or perhaps you’re in the middle of a surgery or perhaps you’re in the middle of treatment and they might say, if something happens to mum, it’s time now.

[00:43:39] She’s lost capacity. she hasn’t known who her family and friends are for many years, they would collaborate then I think with your family. Practitioner about what to do in those circumstances, but they can’t sign that order to say, do not resuscitate.

[00:43:53] I think that it’s more of a collaborative approach in those circumstances. I do often give a particular example when trying to explain to clients what a medical treatment decision maker does, because it’s really important that this person shares your values, or perhaps not shares them, but has an understanding of what your values are, and is able to act in a way that is consistent with those values. And that’s often easy if it’s your partner, but perhaps if it’s your children, or a friend, or even you’ve had to appoint a trustee company, we’ll get to that. down the track a bit as well to be your medical treatment decision maker. I often give my clients this specific example so that they can talk about this example with their family and friends, because I think it kind of pinpoints exactly where you are on the scale of what to do if you lose capacity.

[00:44:48] So the medical treatment decision maker may have some difficult decisions to make. And I’m going to give the example of two people with, who both have a diagnosis of dementia. And I should just praise you this by saying that I am not a medical practitioner. I’m just basing this on my experience of visiting many different nursing homes and talking with families and some of our own personal experiences with dementia and family members.

[00:45:14] But there seems to be roughly kind of two types. And so you’ve got this first type where a person is often very paranoid, can become violent, feels very trapped obviously under a lot of distress. They’re often trying to run away from the nursing home all the time. They don’t feel safe and I think most people would agree that when we see this person and they’re having to be sedated or they’re obviously very distressed and they are suffering.

[00:45:44] Being alive And then you seem to have this other type of dementia where they still don’t know who their family and friends are, but they seem to be good people. quite happy in at all. They’re not what we would say distressed. You know, they’re happy to have these lovely people come and visit them and, have a chat to you and they don’t seem to be suffering in the same way that the other person is.

[00:46:06] If these two examples, if these people developed perhaps cancer and that cancer was What should the treatment be? And it’s really difficult to first example, with the person who is suffering, a lot of people I think would say let’s make them feel comfortable. Their life is actually really miserable.

[00:46:25] And then to further put them through a whole lot of chemo or radiation. It’s only going to increase their misery. And I think not all, but a lot of people in our community would agree that perhaps that person should just be made to feel really comfortable. And I think we have to remember, it would depend on the prognosis, it would depend on the treatments, it would depend if it’s surgery.

[00:46:46] But yes but then the other person is where that real kind of ethical dilemma sits because If that person isn’t miserable or suffering and still seems to be enjoying life, but they don’t know who their family and friends are, should you provide them with treatment and extend their life? And the essence of that is what quality of life means to you. Because if you think that my life means nothing if I don’t know who my family and friends are, then you would still see that person is suffering. If you think no life is important just from being alive, no matter what, and if they’re not miserable and suffering, then they should be able to continue their life.

[00:47:30] And if that was me, I would still want to continue my life. Then that is what your attorney needs to know. It’s that really interesting juxtaposition between those two examples changes what you would do and how you’d want your treatment to be. And I think I encourage many of my clients to use that as an example of yes, I would like my life to be prolonged, or no, I would not like my life to be prolonged.

[00:47:53] I want to be made comfortable in that situation.

[00:47:55] Kate: Yeah, that’s some really good advice and really thought provoking advice to give people to think about. And again, like I’ve said this the whole time, it is really uncomfortable, but it’s decisions you don’t want your loved ones to have to make on your behalf. It’s just,

[00:48:12] Eleanor: And that’s just nice if they’ve had a clue because they’ve had a

[00:48:15] Kate: Yeah, definitely.

[00:48:16] Eleanor: And, we know that families often, have some of these conversations or mums made it clear all of their life. that where there’s life, there is hope. And she would just want to be alive or dad’s always said, I’ll, Put me out to pasture and then shoot me, you know, all of these kinds of different things that come through our families.

[00:48:33] And so you have these ideas, but having these conversations with them and going directly to the point is important. Now, sometimes we have to appoint people that we don’t really know in these positions as well. So how would they

[00:48:46] Kate: hmm.

[00:48:47] Eleanor: With

[00:48:48] Kate: can you have more than, can you appoint more than one person or

[00:48:52] Eleanor: your financial and personal, you can appoint you would again, similar to the executor, you always want to have a substitute or you can have people acting jointly or by majority together, separately. But you want to always make sure you’ve got a backup person there. With the medical treatment decision maker um, the act says that only one power can have that power at the time.

[00:49:16] So again, you have. Your substitute or your alternative medical treatment decision maker if the other person for whatever reason is unable to be there to make those decisions at the time, but only one person can act at a time.

[00:49:28] Kate: And again, in the country, you’d want them to be

[00:49:32] Eleanor: if they’re outside of jurisdiction, they can’t be reached, then they can’t act. So then the substitute would apply. So, If you’re one of your children who is your medical treatment decision maker is overseas at the time on a holiday, then the second person would come in and act as your medical treatment decision

[00:49:47] Kate: And is it advised that the people that have been appointed these positions to have a copy?

[00:49:51] Eleanor: They will have a copy. I think most law firms will provide them with a copy and with some information and advice on what their obligations and duties are when acting in those roles.

[00:50:02] Kate: Yeah,

[00:50:02] Eleanor: absolutely.

[00:50:03] Kate: Yep. So that’s some really important information to think about. And again, it is really about opening up that conversation. And I hope that with what you and I are doing today and discussing, it does take away some of that fear and of that unknown. It’s, how do you approach a conversation with this, with your family, or even with yourself, and I hope that today’s conversation gives people a Some insight and then some seed for thought to go, okay, maybe this isn’t such a scary topic, but I do need to tackle it because it’s very important to do that.

[00:50:34] Eleanor: And that’s the solicitor’s job to help you through that as well. There’s a solution to almost every problem. If you think that something’s a problem, I’m sure your solicitor’s seen it before and they can help you come up with, range of solutions. And you can often pick, which one is more adapted to your situation and your family dynamic and suits you.

[00:50:53] So there is always room to do that. And sometimes having that discussion when you’ve got this real worry

[00:50:59] means that that can be resolved and you can think, Oh, geez, I’ve been putting that off for so long and it only took a conversation with someone we were able to resolve

[00:51:07] Kate: Yeah. Very, yeah. Very true. And is there anything else that you advise? I do have one question thinking and reflecting on all, of this. So, You know, Usually when people, they haven’t I don’t know if you know the stat, I personally don’t know the stat of how many people actually do have a will and things put in estate planning done.

[00:51:28] But, usually at the time of diagnosis, when you think, Oh God, I should have done it, but now I need to do it. You’re not only in, treatment, but usually your finances are impacted. So my belief is people go, Oh, that’s too expensive. I can’t engage with a solicitor because it costs too much.

[00:51:45] Are there different alternatives or cheaper alternatives that you could suggest or,

[00:51:51] Eleanor: so I think most people are aware of the well kits that come in the post office. So there are options like that. I think there are online options too. I think I certainly couldn’t guarantee if you have a complex situation and a blended family, I think you absolutely need to see a lawyer and you absolutely should not be waiting for or relying on the formula in relation to each state’s rules about dying without a will. But if you do have perhaps really simple setup and, or you don’t have many assets potentially, so you don’t own your own home, a will kit will help. And you just need to be very carefully in writing out exactly as it says and taking the advice. And certainly, I think there are some online processes that are similar to those WELL kits as well.

[00:52:42] Each, in terms of your powers of attorney, each state actually has its own Office of the Public Advocate is what we call it here. And their website is actually really good and really useful and has some of the forms that you can prepare to and you can actually complete your own powers of attorney yourself.

[00:53:00] I will say that we often get through the office and a number of them that aren’t completed correctly, which means they’re often, or you can be, invalid if they’re not prepared correctly or if they’re not signed in front of solicitors or with the medical treatment decision maker. It needs to be signed in front of, in the case of, let’s say, an advanced care directive, which we haven’t got to, that needs to be signed in front of a medical practitioner.

[00:53:22] So, you need to make sure that you complete all of the signing and execution in accordance with the instructions of the document, but certainly there are places that you can get it done. Absolutely. So, I’ll be looking at the Office of the Public Advocate or its equivalent in all the different states.

[00:53:41] Kate: And you mentioned, yeah, The Advanced Health Directives. A lot of

[00:53:45] people don’t

[00:53:45] Know about that so can you shed some light as to what it is and its importance?

[00:53:52] Eleanor: I can. An Advanced Care Directive is a subsequent document that people will often make and I just want to say that it’s not available in every state, I don’t think. So, it’s only fairly recently that we’re able to do them in Victoria, I think you’ve been able to do them in South Australia for some time, and I’m not aware of whether the other states actually do allow for an advanced care directive.

[00:54:15] Is a document that is signed with your medical practitioner as a witness.

[00:54:21] Kate: Mm A document that you would only do so, unlike all of the other documents that we’ve talked about, you can do at any time. As long as you’re over the age of 18. But in relation to this document, you would normally look at doing this document or completing this document if perhaps you have if you’ve been diagnosed with an illness or you’re planning for end of life.

[00:54:44] Eleanor: So this document is really a document that allows you to speak to your medical treatment decision maker or your doctors once you’ve lost capacity because it asks you some really good questions about what you want the end of your life to look like or what quality of life means to you. So the document is divided into two parts.

[00:55:08] And the first part is really a set of instructions or wishes, I should say. It’s a value statement for your medical treatment decision maker about what quality of life means to you. So it will ask you questions about, is it important that you know who your family and friends are? Who do you want to be around when you die?

[00:55:28] So when you’re in palliative care, do you want to have your last rights read? What kind of things, if you want music. looks at all of these little questions and asks you, what does this mean for you? And so that’s a value statement to your medical treatment decision maker.

[00:55:46] The other section is what we call the directive. And this directive really is an instruction to your doctor as if you had given it yourself. they have to do what it says. So it’s not like wishy washy value statement in the same way that the medical treatment can take that advice and then make a different decision.

[00:56:10] It is a direction to your medical practitioner to act in a specific way. And that might be, do not resuscitate.

[00:56:18] Kate: So that’s where that will come in.

[00:56:20] Eleanor: It might be, yeah, that’s where that comes in. It might be I do not want my life to be prolonged. if I’m in a coma by being fed via a stomach tube. It might be some very specific things. for different cultures, you might have different requirements on there, such as I, do not want to have a blood transfusion, and it really sets that out for you.

[00:56:41] I think the important thing for everyone to remember is that once you’ve lost capacity, you can never change that. So if there is advances in medical treatments that you would have considered that you would have liked to have, but you can’t do that now. And you’ve got a very specific, I don’t want this type of treatment.

[00:57:00] And then it changes, then your direction to that doctor still stands. So that’s why we would normally be looking at this kind of a document on a diagnosis or when you’re reaching end of life planning,

[00:57:13] Kate: Can you put in their organ donation?

[00:57:16] Eleanor: you certainly can and I would, and a lot of people like to put it in the will. And if you’re putting it in the will, it’s probably

[00:57:21] too late. ‘

[00:57:22] cause by the time you see it in the will I often do, if you wanna make an organ donation, I think you should register as a donor. If you’re really serious about that.

[00:57:31] I think the best way to do is reach out and register as an organ donor. So that you can be on the list if something happens to you, but certainly you can definitely have that in your Advanced Care

[00:57:41] Kate: Cause you also then, I know you need to have that conversation with your family because correct me if I’m wrong, if it gets to that point, your family actually do have the final say and have, and can say no, even though you’ve registered and you’ve done all the right things on your end.

[00:57:58] Eleanor: you want to make that clear and I think that’s important why you also have, you appoint that Medical Treatment Decision Maker because If you don’t have someone appointed to have the power to do that, then potentially your wishes can be override by a family member who doesn’t agree with that or who just can’t bear to think of your organs, being used in that way at that time through grief or a whole lot of things that are going on for them.

[00:58:19] You want to make sure that you’re appointing someone who understands what your wishes are and will

[00:58:24] Kate: Hmm.

[00:58:24] Eleanor: Absolutely.

[00:58:26] Kate: I’m very conscious of time, but I think that we’ve covered a lot, I’m new to this area. So is there anything that. You felt that we’ve missed or that’s really important to highlight. Usually we do ask our guests for some golden nuggets, but this entire episode has been a giant golden nugget.

[00:58:42] So is there anything that we’ve missed or that you think that’s really important to highlight? Yeah.

[00:58:49] Eleanor: I will say that a lot of people put off their estate planning if they don’t have a family member or friend. that they can trust to put in place as an executor or a power of attorney. I don’t think that should put you off. You should still absolutely see your solicitor. There are options.

[00:59:07] You can appoint professionals such as a lawyer or an accountant that, you know, and trust. But there are also trustee companies too, that actually have this role. And yes, all of those people get paid and make money from doing that job, but they still have the same. obligations and duties that a friend would have to act in your best interest and with your will and preference and to carry out the terms of the will.

[00:59:30] You don’t have to be at a loss and there are plenty of people that have plenty of friends and family that they trust and choose to do that anyway. Use a trustee company or a lawyer or a an accountant for a different reason but please don’t let That issue put you off going and seeing a lawyer because there’s a number of different options to suit you.

[00:59:48] And sometimes you often can come up with a family and friend who’s willing to do it for free anyway. So if you dig deep a bit,

[00:59:56] Kate: It’s exactly, it’s having that uncomfortable conversation and you never know what you’re gonna, going to find out. Look, I can’t thank you enough for having a conversation with me and sharing all your amazing knowledge. And it’s really refreshing to hear that.

[01:00:09] Once you break it down, it’s just a process. And once it’s done, keep it in your mind there, but you can rest assured that you’re leaving, your life in this earth with instructions and less of a mess for people that you love to deal with.

[01:00:25] Eleanor: To the people that you want to look after and putting that onto paper. And then leaving behind like a smoother estate transaction or whether it’s if you’ve lost capacity a smoother way for them to take control and you have some trust in the people that you’re appointing and looking after you if you’ve lost capacity too.

[01:00:45] You know that they’re going to look after you in the way that you want to be looked after.

[01:00:49] Kate: and you just said there that it gives people when you have lack of control, but if you do it now, it’s giving you that sense of control. When you don’t have control, you’ve laid all the groundwork in their foundation so that if that moment ever came you know, that you agreed with it at some point.

[01:01:06] So yeah. Absolutely.

[01:01:07] Eleanor: Absolutely, that’s right. an absolute perfect summary.

[01:01:11] Kate: Well, Thank you so much Eleanor, and thank you to those who have listened today. We really appreciate your time and yeah, thank you so much.

[01:01:18] Eleanor: Thank you Kate for having me on. I’ve had a blast.

[01:01:21] Kate: you.