Estate planning for people with disability

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Over your life, you will accumulate your own wealth and collect personal treasures that you and your family will have fond memories of. Not only that, you have likely lived a life where you are in control and have independence, so it only makes sense that you would put the right procedures in place to protect that in the future.

Key points:

  • Estate planning is really important for everyone, as these documents uphold your rights if you lose capacity to make decisions or die

  • Build a relationship with your lawyer, as they will be helping you with really important legal documents

  • You can bring a support person along to your estate planning appointments

Estate planning assists with future-proofing yourself. It documents what you would like to happen to your belongings after you die, as well as giving direction on how you want people to make financial and health decisions on your behalf if you are no longer able to make them for yourself. It is of vital importance to all people and should be undertaken when you are still able to dictate your wishes.

In some cases, if you lose the capacity to make the decisions yourself, you will have those important decisions taken out of your hands. And if you pass away unexpectedly, your estate will not be dealt with the way you wanted it to be.

This is why it’s important to have plans in place for the future when it comes to things like care, lifestyle, accommodation, and funding.

What is estate planning?

Estate planning involves multiple legal documents that state your wishes for what you want to happen with your estate when you die or what you want to happen medically, legally or financially if you lose the capacity to make decisions for yourself.

Putting an estate plan in place makes sure your rights are upheld once you die or lose capacity.

Natalie Wade, Founder and Principal Lawyer at Equality Lawyers in Adelaide, explains that all Australians should have valid estate planning in place, even though the whole process can be quite confronting.

“It is very important to have estate plans in place to make sure that it is clear what you want to happen when you pass away and how you want your affairs to be managed, and that can look different to everyone,” says Ms Wade.

Estate planning documents include:

  • Wills

    A legal document that contains all of your wishes on how you want your estate, like property, money and personal assets, to be distributed after your death. It also should outline who you want to execute and manage your estate until everything has been finalised and distributed.

  • Power of Attorney or Enduring Power of Attorney

    A Power of Attorney is a legal document that gives power to another person to deal with your assets or financial affairs while you are still alive but have lost the capacity to make decisions for yourself. A Power of Attorney is a temporary document for things like illness or during surgery recovery if you don’t want to deal with these matters yourself. Whereas an Enduring Power of Attorney is an ongoing document for when you lose the legal capacity to make decisions for yourself and is in place until your death.

  • Guardianship or Administration

    A Guardianship and Administration role involves a trusted person being able to make personal decisions on your behalf if you do not have mental capacity. This could be around lifestyle, accommodation, health care, access to services or finances. If you have a Guardian or Administrator, you will need to talk to them about organising your estate planning and what that process will look like.

  • Trusts

    A trust is an arrangement that leaves a third party, known as a trustee, with assets on behalf of a beneficiary (like a child or relative). A trust can minimise your estate taxes and provide certain benefits to the beneficiaries. Usually, a trust will either provide income over a beneficiary’s life or provide whatever is left over after the first beneficiary dies.

  • Advance Care Directives (ACD)

    An ACD is a document that outlines your requests for future care, including your beliefs, values and goals that you want to achieve if you are no longer able to make medical decisions for yourself. You can appoint a substitute decision-maker in your ACD who will use this document to implement your wishes.

It is important to remember that each State and Territory has their own rules around estate planning documents. These rules can differ depending on where you live. Make sure to engage with a lawyer in your State or Territory about your options so you can secure your estate plan.

Additionally, you can’t organise any estate planning if you have become legally unable to make decisions so it’s important to take some time to plan and document your wishes while you are able to.

Barriers to estate planning

People with disability can face issues when it comes to organising their own estate plan for the future.

Ms Wade explains, “I think there are two significant barriers that face people with disability when it comes to estate planning.

“One is the everyday common barrier that no one wants to think about their death and no one wants to face that reality or think about what those decisions and wishes might be. It can be really hard to work through, and it’s important to recognise that.

“But the second issue that faces people with disability particularly is actually having the confidence that a lawyer would be able to assist them to navigate the decisions that they may need to include in their estate planning process.”

Ms Wade says people with disability may feel concerned about how to explain their lifestyle and living situations.

For example, some people with disability may live in supported accommodation or group homes where they have lived for 30 or 40 years and have unique relationships with other people in these facilities, but are not in any sort of de facto relationship with them.

Ms Wade believes it is understandable why people with disability would be apprehensive about trying to explain these types of things to a lawyer so they understand the situation.

She has also found that sometimes people with disability are even unsure whether they are allowed to make a legal document like a Will.

“There hasn’t been a lot of promotion of people’s rights in this space and it is really important for people with disability to know they can approach their lawyer to talk about what their estate planning requirements may be and to have that conversation and get those instruments in place,” says Ms Wade.

When should you start estate planning?

Ms Wade recommends starting your estate plan as soon as possible so you can protect yourself in the future.

She adds that all estate planning documents should be updated when there is a significant life event. This could be buying a new house, getting married, coming into a new inheritance or amount of money, if you move State or Territory, or if your condition starts to deteriorate.

Your estate planning should always be updated in accordance with any changes you have in your life, especially if you have a change of heart around medical, legal, financial or lifestyle wishes.

As many people tend not to have one in place, Ms Wade encourages people with disability to go and get their estate planning organised.

Organising your estate planning

Talking to an expert about your estate plan is the best way to get your legal documents in order, this could be a lawyer or engaging your State or Territory Public Trustee.

Having a conversation with a lawyer is the first step towards securing your estate plan for the future.

A lawyer will be able to make sure all of your documents are legally viable and help you express what is important to you within these documents.

Ms Wade says people with disability need to have confidence in the lawyer and develop a good relationship with them so that they can have all of their wishes and needs documented.

People with disability should also feel free to bring in things with them that can help explain themselves to their lawyer. This could include a copy of their National Disability Insurance Scheme (NDIS) plan or a copy of their group house book.

“People have different ways of communicating their lifestyle and wishes, and it is important for people to know that they are able to use those when talking about what their estate plan wishes are,” explains Ms Wade.

She adds that people with disability can also bring a support person with them, such as a close family member or friend, to assist them through the process, flag any issues with the lawyer or provide further explanations behind their decisions.

Lastly, Ms Wade recommends people with disability have a clear understanding of their estate and assets they have, like a house, car, valuables, or money, as well as what they want to happen when they pass away.

Some things to think about before meeting with a lawyer are:

  • Who are the important people in my life?

  • What charities are important to me that I want to include in my Will?

  • What do I want to happen after I pass?

  • Where do I want my money to go?

  • What does life without me look like?

  • What assets do I have?

What important wish do you want to be covered in your estate plan? Tell us in the comments below.

Related content:

Your rights as a person with disability
Creating a plan in the case of emergency