Wills, Power of Attorney, and Advance Care Directives

Will

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, it is worth making one soon, while you can still give clear instructions. A solicitor who works in estate law can help.

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 will that is worded or witnessed wrongly can fail or be open to challenge, and a court dispute over an estate can be costly. Many estate planning solicitors will quote a fixed fee for a will, so it is worth asking for one.

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

Enduring Power of Attorney (financial and legal)

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 to have someone appointed to manage your finances, 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 an authorised witness, and who counts differs. In New South Wales a justice of the peace cannot witness it. 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.

Appointing a medical decision maker

In most states this is a separate document from a 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 an enduring guardianship, a medical treatment decision maker appointment, an enduring power of attorney that covers health matters, or an appointment inside an advance care directive or advance personal plan.

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.

If no one is appointed, the law in each state and territory sets out who can make medical decisions for you, and the order is not the same everywhere. A spouse or partner usually comes first. In some states, including New South Wales and Queensland, the person who cares for you without being paid comes before your adult children. In South Australia a partner sits alongside other close relatives rather than ahead of them. The default may not be who you would choose. Appointing someone explicitly removes any ambiguity.

Advance Care Directive

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 people treating you have to rely on others to work out what you would want. With one, your wishes have legal weight.

The name, form and formalities of an ACD differ between Australian states and territories. In most of them, a valid directive that refuses a treatment binds the doctors treating you, whether that comes from a state law or, as in New South Wales, from the common law. 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.

State-by-state requirements

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.

Use a solicitor

For a will and a power of attorney, a solicitor who works in estate planning in your state will know the requirements. An advance care directive is different: each state and territory government publishes a free form designed to be filled in without a lawyer, and your GP or palliative care team can help.

This is not usually expensive. Many estate planning solicitors will quote a fixed fee for a will, an enduring power of attorney and an enduring guardianship appointment done together, so ask for a fixed quote before you start. Community legal centres may be able to help 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.

If you are the person being appointed

You may well be the person named in one or more of these. The decisions in them stay with the person who signs. What being named asks of you is covered at the end of the enduring power of attorney, advance care directive and will guides.

Review anything already 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.

This is general information only. For your situation, speak with a solicitor admitted in your state.