Wills



Canberra Hospital and Health ServicesOperational Procedure Wills Contents TOC \h \z \t "Heading 1,1" Contents PAGEREF _Toc466022975 \h 1Purpose PAGEREF _Toc466022976 \h 2Alerts PAGEREF _Toc466022977 \h 2Scope PAGEREF _Toc466022978 \h 2Section 1 - Information for ACT Health Staff (other than the AHCNC and the AHHM) PAGEREF _Toc466022979 \h 2Section 2 - Information for the AHCNC and the AHHM PAGEREF _Toc466022980 \h 3Implementation PAGEREF _Toc466022981 \h 5Related Policies, Procedures, Guidelines and Legislation PAGEREF _Toc466022982 \h 5References PAGEREF _Toc466022983 \h 5Definition of Terms PAGEREF _Toc466022984 \h 6Search Terms PAGEREF _Toc466022985 \h 6Attachments PAGEREF _Toc466022986 \h 6PurposeTo provide information to ACT Health staff on how to respond when they are asked to assist a patient with a Will.Back to Table of ContentsThis Standard Operating Procedure (SOP) describes for staff the process to ScopeAlertsACT Health staff must not be involved with any aspect of preparing a Will for a patient. If asked to assist, they should advise the patient to seek legal advice. If all reasonable attempts by the patient, or their family and friends to secure witnesses to witness a patient’s Will have failed, the After Hours Clinical Nurse Consultant (AHCNC) and the After Hours Hospital Manager (AHHM) may be contacted for the purpose of witnessing a patient’s Will. The AHCNC and the AHHM are the only ACT Health staff who may witness a patient’s Will. Justices of the Peace who are also employees of ACT Health are exempt from this procedure and may carry out their Justice of the Peace duties as appropriate.Back to Table of ContentsScopeThis procedure applies to all ACT Health staff.Back to Table of ContentsSection 1 - Information for ACT Health Staff (other than the AHCNC and the AHHM) Under no circumstances should ACT Health staff, in the performance of their duties, prepare a patient’s Will, make any notations of a patient’s wishes in relation to a Will or attempt to exert influence regarding the contents of a patient’s Will. If nominated as the executor of a Will, ACT Health staff should decline the appointment if performing this duty as an ACT Health employee (as opposed to being a family member of the patient).If asked to assist with a patient’s Will, ACT Health staff must advise the patient to seek legal advice from:their own solicitor,a solicitor of their choice, orthe Public Trustee.If a patient requires legal assistance in relation to a Will staff may provide an information sheet (Attachment A) prepared by the Acute Support Social Work Department. This information sheet has the contact details of solicitors who will make visits to patients at the Canberra Hospital. It is the responsibility of the patient, their family or friends to directly contact a solicitor. The phone number for the ACT Law Society which can provide the contact details of all ACT solicitors is (02) 62740300. The phone number for the Public Trustee for the ACT is (02) 6207 9800. If all reasonable attempts by the patient, or their family and friends to secure witnesses to witness a patient’s Will have failed, ward staff can contact both the AHCNC and the AHHM for the purpose of witnessing a patient’s Will. Where ACT Health staff have allegedly acted contrary to this procedure, ACT Health may take action pursuant to the terms of their employment contract. This may include an investigation into alleged misconduct under the staff’s member relevant enterprise agreement.Exemption Justices of the Peace who are also employees of ACT Health are exempt from this procedure and may carry out their Justice of the Peace duties as appropriate. A current list of Justices of the Peace (including their business and after hours contact details) is available from the Justice and Community Services website.Back to Table of ContentsSection 2 - Information for the AHCNC and the AHHMUnder no circumstances should the AHCNC and the AHHM, in the performance of their duties, prepare a patient’s Will, make any notations of a patient’s wishes in relation to a Will or attempt to exert influence regarding the contents of a patient’s Will. If nominated as the executor of a Will, the AHCNC and the AHHM should decline the appointment if performing this duty as an ACT Health employee (as opposed to being a family member of the patient).There is no obligation on the AHHM or the AHCNC to witness a patient’s Will and they can refuse to do so. Two witnesses are required when witnessing a Will. If one witness is already available, the AHCNC and the AHHM should discuss their availability and decide which one is willing to act as the second witness to the patient’s Will.When witnessing a patient’s WillIf the AHCNC and/or the AHHM witness a patient’s Will, the following must be documented in the patient’s clinical record:the reason for witnessing the patient’s Will, such as the required number of witnesses were unavailable, and any other details considered relevant in relation to witnessing the patient’s Will.The AHCNC and the AHHM should note the following:Wills may be written in any languagethe role of the witness is to observe the execution of the signing of the Will by the patient (the testator). You are verifying that you saw the person (the testator) sign the Will on the date specified. There is no requirement for you to read the Will before you witness the Willit is not your role to, and nor should you, provide advice about the content of the Will, or the mental capacity of the testator. If you have concerns about the testator’s mental or physical capacity to make a Will, you should not agree to act as a witnessall signatures should be made with the same pen and must be datedthe testator should first sign and date the signature block at the end of the Will in the presence of both witnesseswitnesses are required to print their names, date and include a contact address (c/- The Canberra Hospital)the foot of each page should also be signed and dated by the testator and both witnessesall alterations in the Will (including obliterations, interlineations or other alterations) should be initialled by the testator and the two witnesses.Patients who are unable to read or write EnglishSome patients may be unable to read and/or sign their name because of language difficulties, illiteracy or physical disability. There are specific requirements relating to the witnessing of Wills in these circumstances. The AHHM and the AHCNC should familiarise themselves with those requirements before agreeing to witness a patient’s Will. Detailed guidelines for witnessing Wills in these special circumstances are available in the AHHM Office.Claims, liability and/or court proceedingsWhere the AHHM and/or the AHCNC have witnessed a patient’s Will they should be aware that if any questions as to the validity of the patient’s Will arises they may be required to provide oral and written evidence about the manner in which the Will was witnessed. For examples in the context of legal proceedings or due to a dispute between the testator’s family members. In the case of an alleged fraud, deception, misrepresentation or undue influence either against them or anyone else in relation to a patient’s Will that they witnessed, the AHHM and/or the AHCNC may be required to assist in a police investigation. Where the AHHM and/or the AHCNC have allegedly acted contrary to this procedure, ACT Health may take action pursuant to the terms of their employment contract. This may include an investigation into alleged misconduct under the staff’s member relevant enterprise agreement. Furthermore, should the AHHM and/or the AHCNC agree to witness a patient’s Will and have assisted in writing the patient’s Will (contrary to this procedure), if named as a beneficiary, gifts made to the AHHM and/or the AHCNC may be invalid. In the event of legal proceedings where the AHHM and/or the AHCNC acted in good faith and in accordance with this procedure, the AHHM and/or AHCNC should contact the Manager of the Insurance and Legal Liaison Unit. Back to Table of ContentsImplementation A Director General Alert will be sent notifying staff of the new procedure, highlighting the main practice rmation will be tabled at the Strategic, Medical and Nursing Executive rmation will be tabled at the Directors of Allied Health forum run by the Chief Allied Heath office for further rmation around the requirements of this procedure will be placed on Quality Boards throughout the Canberra Hospital and Health Services.Back to Table of ContentsRelated Policies, Procedures, Guidelines and LegislationLegislationWills Act 1968Justices of Peace Act 1989Back to Table of ContentsReferencesACT Law Society website actlawsociety.asn.auJustice of the Peace Search website Trustee and Guardian website publictrustee..auBack to Table of ContentsDefinition of Terms AHCNC: After Hours Clinical Nurse ConsultantAHHM: After Hours Hospital ManagerJustice of the Peace: A person who is appointed as a justice of peace under the relevant Justices of Peace Act, which in the ACT is the Justices of Peace Act 1989. By virtue of their appointment, a justice of peace may witness various kinds of documents, such as a Will, and in the manner as provided by the Act under which they are appointed.Public Trustee: The Public Trustee for the ACT provides free and inexpensive services for drawing Wills.Will: is a legal document made by the testator wanting to provide in writing about how their assets and/or liabilities (the estate) will be distributed. The Testator may name one or more persons in the Will who will manage their estateBack to Table of ContentsSearch Terms Wills, Making a Will, Witnessing a Will, Patient’s WillBack to Table of ContentsAttachmentsAttachment A – ACT Solicitors Information Sheet Disclaimer: This document has been developed by ACT Health, Canberra Hospital and Health Service specifically for its own use. Use of this document and any reliance on the information contained therein by any third party is at his or her own risk and Health Directorate assumes no responsibility whatsoever.Date AmendedSection AmendedApproved ByEg: 17 August 2014Section 1ED/CHHSPC ChairAttachment A – ACT Solicitors Information Sheet ................
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