Wills, powers of attorney and advance care planning

Planning ahead isn't only about money. It's about making sure the people close to you know your wishes, and that someone you trust can make decisions if you're unable to because of illness, injury or dementia. Without the right documents, families can face delays, costs and difficult decisions at stressful times.

This guide explains the main documents used in Australia: wills, enduring powers of attorney, enduring guardianship and advance care directives. The names, forms and rules differ between states and territories, so get legal advice and use the forms for your state. This is general information, not legal advice.

Wills

A will sets out who receives your assets when you die and who will administer your estate (your executor). Keeping a current will:

• ensures your assets go to the people and causes you choose;
• reduces delays and costs for your family;
• lets you appoint an executor you trust.

Review your will after major life events such as marriage, separation, the death of a beneficiary or executor, or a move into a retirement village or aged care. Some assets, such as superannuation, don't automatically pass under your will. Ask your super fund about binding death benefit nominations.

Enduring power of attorney

A power of attorney lets you appoint someone (your attorney) to make financial and legal decisions for you. An enduring power of attorney continues if you lose decision-making capacity, which is why it's important in later life. In some states, an enduring power of attorney can also cover personal and health decisions.

Choose an attorney who:

• you trust completely;
• understands your values and wishes;
• is organised and willing to take on the role.

You can usually appoint more than one attorney and set conditions or limits. Attorneys must act in your interests and keep your money separate from theirs.

Enduring guardianship and medical decision-makers

In some states, personal and health decisions, such as where you live and what medical treatment you receive, are made by an enduring guardian or medical treatment decision-maker, appointed through a separate document. Other states combine these powers with the enduring power of attorney. Check your state's rules.

Advance care directives

An advance care directive records your values and preferences for future health care, and may include specific instructions about treatments you would or wouldn't want. It's used if you can't communicate your decisions.

Advance care planning involves:

1. thinking about what matters to you;
2. talking with family, your doctor and your substitute decision-maker;
3. writing down your wishes in your state's form;
4. sharing copies with your doctor, hospital, aged care provider and family, and considering uploading it to My Health Record.

Advance Care Planning Australia provides information, state-specific forms and a free advisory service.

Protecting against elder abuse

Elder abuse can be financial, psychological, physical or neglect, and is often committed by someone known to the older person. Planning documents, made carefully with independent advice, can help protect you. Warning signs include unexplained changes to bank accounts or wills, pressure to sign documents, and isolation from friends.

If you're worried about yourself or someone else, call the national elder abuse phone line on 1800 ELDERHELP (1800 353 374). In an emergency, call 000.

Family agreements and moving in with family

Arrangements such as granny flat agreements or contributing money to a family member's home can have legal, financial and pension consequences, and can cause problems if relationships change. Get independent legal advice and put agreements in writing.

Where to get help

• A lawyer experienced in wills and estates or elder law.
• Your state public trustee, which can prepare wills and powers of attorney.
• Community legal centres and seniors' legal services, which may offer free advice.
• Advance Care Planning Australia for advance care directives.
• Your doctor to talk about health wishes.

Keep a simple list of your important documents, accounts, insurance policies, digital accounts and key contacts, and tell your executor and attorney where to find it. It saves your family a great deal of time and stress if they ever need to act for you.

Remember that an enduring power of attorney ends when you die. From then on, your executor deals with your estate under your will, so choose both roles carefully and make sure each person knows the other.

Common mistakes

• Waiting until capacity is in doubt.
• Not telling anyone where documents are kept.
• Using forms from the wrong state.

Talking with your family

Legal documents work best when the people close to you know about them and understand your wishes. Have a conversation with your family and your chosen decision-makers about what matters to you: where you'd like to live, the kind of care you'd want, and how you'd like your affairs managed. It can feel awkward, but it often brings peace of mind for everyone and reduces the chance of disputes later.

Reviewing your documents

Review your documents every few years and after major life events, such as a marriage, separation, the death of a decision-maker, a move interstate, or a move into a retirement village or aged care.

Where to find more information

Advance Care Planning Australia publishes forms and guidance for each state and territory and runs a free advisory line. Moneysmart explains wills and powers of attorney in general terms. Your state public trustee and attorney-general's department publish official forms and guides for enduring powers of attorney and guardianship. Community legal centres and seniors' legal services can provide free or low-cost advice.

If there are no documents

If someone loses capacity without an enduring power of attorney or guardian in place, family members may need to apply to a state tribunal for an administrator or guardian to be appointed. This can take time and cost money, and the person appointed may not be who the older person would have chosen. Making documents early avoids this.

Key points

A will, enduring power of attorney, enduring guardianship or health decision-maker appointment, and advance care directive help ensure your wishes are followed. Rules vary between states, so use the correct forms and get legal advice. Make documents while you have capacity, discuss them with family, keep them accessible and review them regularly.