Law Talks Episode: Dying to Know Day 8th August

Robyn: Good morning and welcome to Law Talks here on 4CRB and today we have joining us from Attwood Marshall Lawyers Wills and Estates Associate Natalie Comerford. Thanks for joining us today, Natalie.

Natalie: Thanks for having me.

Robyn: Well, in light of Dying to Know Day, which took place this week, we’re going to be cutting through the taboo and talking about death.

Firstly, Nat, what can you tell us about Dying to Know Day and why should people be embracing it?

Natalie: So, Dying to Know Day is an annual campaign led by the Groundswell Project where people are encouraged to start conversations about death. The Groundswell Project, which is a not-for-profit organization, launched Dying to Know Day in 2013 and the intent behind the day is to dedicate one day a year to raise awareness of the necessity of the importance of having conversations about death and dying.

So, death and dying is not an easy topic to talk about and more so there can be a stigma attached to having such conversations or even giving consideration to the topic. The organization wants to create a more death literate society, where people in communities have the practical knowledge needed to plan and respond to dying, death, and grief.

So, throughout August, people hold events, gatherings at home, and take individual actions, all to improve their knowledge about the choices they have or the options available to them at the end of life. So, the initiative is an important reminder to have conversations with your loved ones about the future, about death, and about your wishes after you’re gone, as well as understanding the choices you’ll make at the end of your life.

So, as an estate planning lawyer, we see first-hand how hard it is for some people to give consideration to this topic, but, uh, it’s really great to know that there are resources available for people to access and to educate themselves to demystify what happens and what to expect.

Robyn: Well, death is understandably a topic we would rather not talk about, but there are a lot of things to consider and it doesn’t serve anyone well to bury your head in the sand.

Natalie: That’s right. So, death is a very personal topic. It not only impacts you, but everyone you leave behind. And it impacts everyone differently. First and foremost is the emotional side of losing a loved one, and the process of grieving. This is where a lot of people, I think, get stuck, and why we shy away from the topic.

No one wants to be reminded about the day we find ourselves in the situation of having to go through this life event. So, the other side of death that most people have no idea about is the administrative tasks involved in winding up a person’s life. This is a minefield that most people struggle with and it’s a minefield that needs to be navigated often when parties are at one of the lowest points in their life after having just lost a loved one.

Robyn: Yes, unfortunately we all have to face death at one point or another. 

Natalie: That’s right. Well, one thing we can confidently say is that 100 percent of the population will face this situation. If we look at some of the statistics, the leading causes of death in Australia in 2022 were heart diseases, dementia, including Alzheimer’s disease, COVID 19, stroke and, other brain conditions, and lung cancer.

So, when you break down that data between men and women, the order does change slightly. However, these still remain the top five leading causes of death. And what we all know is it’s not about if we die, but when and how is the million-dollar question. So being an estate planning lawyer, we’re all about being prepared for the inevitable.

Robyn: So, how prepared are Australians for death in the context of when you can prepare for such a thing? 

Natalie: So, when we look at how prepared Australians are, I very much look through the lens of a lawyer in relation to this question. So approximately 50 percent of Australian people do not have a will, so that 50 percent of those with a will are mostly made up of older people or those who have significant assets to pass.

Not surprisingly, most young people do not have wills or any estate planning documents in place. So, this shows us there’s a clear need for more education around the importance of making a will so that people of all ages fully understand what’s at stake. So, I’m a strong advocate for as soon as you turn 18, you should prepare or have a plan in place.

Robyn: Yeah, I’m glad we’re talking about this today because we are supporting the Groundswell Project in their quest to encourage people to have conversations about death and dying, which is so important. So, you mentioned mostly older people tend to make up that 50 percent of those of us that have a will. What about the younger generations? Why is it important for them to have a will in place from the age of 18?

Natalie: Well, a great misconception that many people have, and I hear often, is that I don’t have any assets, so I don’t need a will. Nothing could be further from the truth. Having assets or not is not the qualifying factor as to whether or not you need to have a will.

What is, is just being over the age of 18 years old.  Some of the reasons why everyone needs to have a will in place are firstly, we’re all going to die at one day. And at this point in time, it is a guarantee. One of the main benefits of having a will is to appoint an executor. So that’s the person that you entrust with your assets and is appointed via your will to manage those assets and distribute them in accordance with your instructions.

Every will should contain an expressed appointment to ensure that the person you want to represent you is able to do so effectively. To not have an executor means that your family or loved ones are going to have to make an application to court to be appointed as an administrator.

It’s important to note that there’s not a guarantee that your family will be appointed, so why leave it to chance? 

Next thing to consider is, um, who you want your assets to go to. So, as I mentioned before, I see a lot of people who think they do not have assets, but the actual fact of the matter is most everyone, by the time they turn 18 years old, have a superannuation account along with at least a bank account, and these days, even a car. If you don’t have a car, you might even just have a go card with money sitting on it. These are all assets, no matter how little you may think they’re worth.  So, as an estate planning lawyer, to me, if someone who is 18 years old and has a superannuation account, but does not have a will in place, it sets off alarm bells. Because of the way superannuation is structured and giving consideration to how money is passed, it’s vital for a person of any age who is not married and has no children or dependents to have a will in place to insure any insurance or death benefits attached to super get to the people they want it to go to.

We see this, we see too many instances of young people passing away and not having the correct documents in place. And the families are the ones that end up suffering.

Robyn: Yeah. So, planning and having conversations about death and dying will raise awareness that it is not just the elderly that need to be planning or giving consideration to the topic.

This really is a topic for everyone to consider.

Natalie: Absolutely, and we know that from an emotional perspective it’s not pleasant having to consider, but by having conversations within the family unit and raising awareness of what needs to be done and considered can save families not only from an extremely stressful and emotional time when they’re likely to be at their worst, but also save families a fortune, financially speaking.

Robyn: Yeah. So, while we’re on the topic of raising awareness for dying to no day, what other types of end-of-life planning do our listeners need to be aware of?

Natalie: So, planning is not just about being prepared for death or dying, with today’s amazing medical care, we’re all living longer, which is putting off the inevitable event of us facing death.

So, we are likely, however, to experience a time throughout our lives when we need to call upon someone to help us, like assist us in making a health or financial decisions. This is where it’s important to ensure that you have an enduring power of attorney in place. So, an enduring power of attorney is a legal document that you need to have in place for your loved ones to be able to act for you and to make decisions on your behalf.

You can also have an Advanced Health Directive in place. This is similar to an Enduring Power of Attorney in that it’s a legal document that specifically outlines or records your medical wishes. Again, this is not just a document for older people.

Robyn: So, when might someone need to make an advance health directive?

Natalie: Well, firstly, to make an advance health directive, you must be 18 years or older and have the mental capacity to understand the nature and the effect of the document. An advance health directive needs to be signed by your doctor and by you in the presence of an eligible witness. Um, the best time to make an advance health directive is before any kind of urgent medical condition or illness that arises.

It’s extremely important if you’re about to be admitted to hospital, if your condition is likely to impact your capacity and your ability to make decisions, or if you have a chronic medical condition that could result in serious complications. We’re finding that, before residents are being accepted into nursing homes, the care facilities are insisting that the residents have an advance health directive in place, as well as an enduring power of attorney.

So, medical practitioners will usually bring it up with the elderly, but as long as you’re over the age of 18 and have capacity, you can have this in place.

Robyn: What are some of the instructions someone can include in that advanced health directive?

Natalie: Well, an advanced health directive will outline what’s important to you and what your preferences are.

So, what worries you about the future? For example, if you’re unable to live independently in your home.  You know, what would your wishes be? If you have any cultural, religious, or spiritual values you would like to be considered as part of your healthcare plan, they can be included. What would comfort you, uh, as you near death?

This would be outlining details such as, you would prefer to be at home when you die or you’d like certain music to be played, et cetera, um, who you’d like to be involved in the discussions about your health care and anyone you don’t specifically want to be involved in discussions about your health care.

You can include directions about life sustaining treatment, directions about other health care, for example, blood transfusions, who you would like to appoint as an attorney for health-related matters, and you can also determine how your attorneys are going to act for you. So, say, for example, you appoint, multiple people, you might stipulate that they are to act jointly, or you might give them permission to act jointly and severally.

And then most importantly, any individual instructions you’ve got for your attorneys. I always suggest to clients to use it as a document to communicate, be a voice in the event that you’re not able to, yeah, communicate yourself. 

Robyn: So, what about voluntary assisted dying? Is this an issue that can be dealt with in an advanced health directive should this be something someone wants access to if their health is declining or perhaps, they’re diagnosed with a terminal illness?

Natalie: No, the voluntary assisted dying scheme is separate and cannot be included in an advanced health directive. The purpose of the Advanced Health Directive is to give you confidence that your wishes regarding your health care will be carried out if you cannot communicate your decision.

However, a request for euthanasia would not be followed as this would be a breach of the law. To be eligible to access the Voluntary Assisted Dying Scheme, you need to meet certain criteria depending on which state or territory you’re in. In Queensland, to be eligible, you must be over the age of 18, have an illness or a medical condition that’s advanced, progressive, and will cause death within 12 months, be suffering intolerably from the illness, and have decision making capacity.

So, if you meet the criteria, you can then apply to the scheme, follow the stringent process to access voluntary assisted dying. But again, I must reiterate that it’s not something you can put instructions about in your estate planning documents like advanced health directives.

Robyn: Okay, sure. So, Natalie, let’s summarize our focus on dying to know day. What message do you want to leave our listeners with about the importance of having conversations about death and the best way to put a plan in place for later life?

Natalie: I would say just Initiate open conversations. Begin having open and honest conversations with your family about your wishes for the future. Talk about what you envision for your life as you age and, how you want to handle unexpected events or declining health. These conversations, although tough, are essential. Put a plan in place. So, while it might feel uncomfortable to discuss end of life planning, many people find immense relief after making these decisions and having a plan in place.

It brings peace of mind knowing that your wishes are documented and will be respected. Be organized, ensure that all your important estate planning documents are up to date. This includes your will, enduring power of attorney, advanced health directive, and your superannuation nominations. 

Don’t forget about life insurance policies. Many people overlook their life insurance policies or death benefits attached to their superannuation. Regularly check your coverage to ensure it’s adequate and consider the management of these assets if you were to lose capacity and who they’ll go to after your death.

All of these topics can be discussed with an experienced estate planning lawyer who can help you plan for the future and preserve your wishes. You may not realize it, but when a proper plan is in place, it can alleviate any additional stress on your family, who will be facing a very difficult time if your health is declining or following your death.

By guiding family members and loved ones and making your intentions clear, they can honour your wishes without having to second guess what you would have wanted.

Robyn: Yeah, and I think that point right there is it in a nutshell. Thank you so much for your advice today, Natalie. I know it’s a very difficult subject for people to discuss, but I think you’ve given our listeners a lot of food for thought today. And for anyone that hasn’t had the conversation, perhaps now’s the time.

Natalie: Thanks for having me, Robyn.

Robyn: You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.