An Advance Care Directive allows you to maintain a level of control over your future care and medical treatment, as our Wills & Estates team explains.

Introduction

You may have heard the term "living Will" and be wondering what this means. A living Will is the term sometimes used to describe an Advance Care Directive.

In 2016, the Medical Treatment Planning and Decisions Act 2016 (Vic) (‘the Act’) was introduced partly to address the issue of personal autonomy in medical treatment decisions. This included the introduction of legally binding Advance Care Directives.

An Advance Care Directive allows you to maintain a level of control over your future care and medical treatment, by setting out your instructions, values and preferences in relation to your medical treatment. It comes into effect in the event that you lose the ability to make such decisions or to communicate your wishes in future.

In addition to an Advance Care Directive, it is recommended that you also make an Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker. This enables you to appoint a trusted person to make decisions on your behalf in relation to financial and personal matters, and medical treatment (called your Medical Treatment Decision Maker). Although you can provide your binding instructions in an Advance Care Directive, this may not cover every scenario and you may still need someone to make decisions on your behalf.

What is included in an Advance Care Directive?

An Advance Care Directive may contain the following:

Instructional Directives;
Values Directives; or
A combination of both.

Instructional Directives

An instructional directive is a legally binding statement in which you consent to, or refuse, future medical treatment. Your instructional directive takes effect as if you had consented to, or refused, the treatment yourself.

For example, you could include an instructional directive that you consent to a heart bypass operation in specified circumstances, or that you refuse cardiopulmonary resuscitation.

Values Directives

A values directive is a statement of your values and preferences for your medical treatment. Your Medical Treatment Decision Maker will use your values directive to guide them when they make decisions for you.

Some examples include:

If I am unable to recognise my family and friends, and cannot communicate, I do not want any medical treatment to prolong my life;
If a time comes when I cannot make decisions about my medical treatment, I would like to receive any life prolonging medical treatments that are beneficial. This includes receiving medical research procedure(s) to see whether the procedure has any benefit for me.

How can Sharrock Pitman Legal assist?

Having an Advance Care Directive in place provides certainty for you, and peace of mind for your loved ones and the health professionals caring for you, as to your future medical care and well-being when you are no longer able to make these decisions for yourself.

If you believe you could benefit from creating an Advance Care Directive, or have any other estate planning queries (including succession planning), please feel free to get in touch with a member of our Wills & Estates team by email or call 1300 205 506.

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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.‍

Written by a member of our Legal Team

For further information contact

Binay Prasad

Binay is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Specialist in Wills and Estates law, having been accredited by the Law Institute of Victoria. He is part of our Wills and Estates group and deals with Wills and Estates planning and Probate. For further information, contact Binay on his direct line (03) 8561 3329.

What is a Power of Attorney?

An Advance Care Directive allows you to maintain a level of control over your future care and medical treatment, as our Wills & Estates team explains.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Advance Care Directives: "Living Wills"

An Advance Care Directive allows you to maintain a level of control over your future care and medical treatment, as our Wills & Estates team explains.

Introduction