Wills, Power of Attorney, and Advance Care Directives

Do I need a will and what should be in it?

A will is a legal document that records how your assets are to be distributed after your death, and who you appoint as executor to carry out your wishes. Without a valid will, your estate is distributed according to a statutory formula set by law in your state or territory. This formula does not consider your personal relationships, your wishes, or any informal arrangements you believed were understood.

If you do not have a will, booking an appointment with a solicitor who specialises in estate law is the single most important thing you can do this week. Not next month. This week.

If you already have a will, review it now. A will made before a marriage is automatically revoked in most Australian states. A will made before children were born may not reflect current wishes. A will that names an executor who has since died or become incapacitated needs updating.

A DIY will is one of the most common sources of estate disputes in Australia. The cost of a solicitor drafting a proper will is typically between $300 and $600. The cost of resolving an estate dispute in court can be tens of thousands of dollars. There is no sound reason to avoid the solicitor.

For a step-by-step walkthrough, see our full guide on how to make a will.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney (EPOA) allows you to nominate someone to make financial and legal decisions on your behalf if you become unable to do so yourself. It covers things like managing bank accounts, selling property, paying bills, and managing investments.

The word "enduring" is critical. A regular Power of Attorney automatically ceases if you lose mental capacity. An enduring one does not. For someone with a serious illness, the enduring form is the one that matters.

This document must be signed and witnessed while you still have legal capacity. Once capacity is lost, it is too late. The consequences of not having an EPOA in place when it is needed are serious: your family may be required to apply to the relevant state tribunal for guardianship orders, a process that is costly, time-consuming, and emotionally draining.

The requirements for an EPOA vary by state and territory. In most states, it must be signed before a lawyer, justice of the peace, or other authorised witness. Your solicitor will prepare the correct document for your jurisdiction.

For the full detail, including the legislation in each state, see our guide to the enduring power of attorney.

What is a Medical Power of Attorney or Enduring Guardianship?

This is a separate document from financial power of attorney. It nominates someone to make medical and personal care decisions on your behalf if you are unable to communicate your wishes. Depending on your state, it may be called Enduring Guardianship, Medical Power of Attorney, or Appointment of Enduring Guardian.

This person does not have to be the same person nominated as your financial power of attorney, though they often are. Think carefully about who you want making medical decisions. It should be someone who knows you well, can act under pressure, and will genuinely represent your wishes rather than their own.

In most Australian states, the default medical decision-maker (if no one is appointed) follows a hierarchy set by law: spouse or partner, then adult children in birth order, then parents, then siblings. This hierarchy may not reflect your wishes. Appointing someone explicitly removes any ambiguity.

What is an Advance Care Directive and do I need one?

An Advance Care Directive (ACD) is a legal document that records your wishes about medical treatment for a future time when you may not be able to communicate them yourself. It can specify what treatments you do and do not want, where you want to receive care, and what is important to you about your quality of life.

A well-completed ACD is the best protection you have against receiving treatment you would not have wanted. Without one, the medical system defaults to intervention. With one, your wishes have legal weight.

The format, requirements, and legal status of ACDs vary significantly between Australian states and territories. In some states (such as Victoria and Queensland), an ACD has strong legal force. In others, it is treated as a statement of wishes rather than a binding directive. Your palliative care team or GP can help you complete the correct form for your state.

Key things your ACD should address: what level of medical intervention you want in a crisis, whether you want to be resuscitated if your heart stops, whether you want to be artificially fed if you cannot eat, and where you wish to die if that is important to you (home, hospice, hospital).

Once completed, give copies to your GP, your treating specialist, your palliative care team, your hospital, and the person you have appointed as your medical decision-maker. Do not leave it in a drawer.

For how this works in each state, see our guide to advance care directives.

Do the documents I need vary by state or territory?

Legal document requirements differ between Australian states and territories. An Enduring Power of Attorney executed in Victoria will have different requirements to one in New South Wales. An Advance Care Directive completed in Queensland follows a different format to one in South Australia.

If you move between states, or if your assets are located in a different state to where you live, ask your solicitor whether your documents are valid across both jurisdictions. In some cases, you may need separate documents for different states.

Your solicitor will know the requirements for your state. If you are unsure what documents you need or how to complete them, your palliative care team or GP can also direct you to the right resources. Public Trustees in each state offer will-making services and can advise on state-specific requirements.

Should I use a solicitor?

For all of these documents, use a solicitor. Not a document-preparation service. Not a template from the internet. A qualified solicitor who specialises in estate planning and understands the requirements for your state.

This is not expensive. An estate planning solicitor will typically complete a will, enduring power of attorney, and enduring guardianship appointment for $600 to $1,500 depending on complexity. Community legal centres in each state can provide lower-cost or free services for people on limited incomes.

Law Institute of Victoria (liv.asn.au), Law Society of NSW (lawsociety.com.au), and the equivalent bodies in each state maintain referral directories for finding an estate planning solicitor. If your hospital or palliative care service has a social worker, they can often provide referrals to solicitors who regularly work with their clients.

What if I already have some of these documents in place?

If you already have a will or power of attorney document, do not assume it is still valid or relevant. A diagnosis, a change in relationship status, significant changes in assets, or the death of a named executor all create reasons to review existing documents.

Bring all existing documents to a meeting with your solicitor. Let them advise on what needs updating. This is not additional work for the sake of it. It is confirmation that what you have in place will do what you intend.