What documents do I need for the future?
Five legal documents that help you protect your health, welfare, financial and legal interests.
1. Your Will
Having a Will means that after your death, your possessions – including money, property, jewellery and shares – are distributed according to your wishes. Without a Will, your estate will be distributed according to the laws of intestacy, which means that people in your family may inherit from your estate even if you do not wish them to, or in proportions that you do not want. It is important that you make a Will. However, even if you do make a Will, the laws in most places in Australia do allow family and dependents, as well as a few others, to make a claim against your estate if they consider they should have been adequately provided for but have not.
Your Will should be specific and kept up to date.
The NSW Trustee and Guardian website provides comprehensive information and tools related to wills and other legal documents that protect your interests when you are no longer able to. Translated fact sheets are also available.
The Legal Information Access Centre (State Library NSW) also offers a comprehensive online legal guide to wills, estates and funerals.
2. General Power of Attorney (POA)
A General Power of Attorney means that you appoint one or more people to make financial and legal decisions on your behalf. This person is known as your attorney. The POA is a legal arrangement that only operates while you have ‘capacity’ and can be useful to have in place, for example, if you want someone to pay your bills and manage your accounts either generally or while you are overseas or recovering from an illness or operation.
If you would like your POA to continue to be effective should you lose your capacity, you should make an Enduring Power of Attorney (see below).
What does ‘capacity’ mean? This is a legal term defining when a person is capable of making decisions, understanding the facts involved and understanding the choices and the consequences of the decisions. Someone suffering dementia, for example, will at some stage lose the capacity to make decisions for themselves.
A solicitor will have a face-to-face conversation with the person, asking open-ended questions, to determine if they have capacity or not. If there is any uncertainty about capacity, a report can be obtained from a medical practitioner. A person should always be presumed to have capacity unless demonstrated otherwise.
3. Enduring Power of Attorney (EPOA)
An EPOA is an ongoing appointment of one or more people to make legal and financial decisions on your behalf. It continues after you lose capacity, as long as you live. It is a powerful document and, like a POA, gives your attorney(s) the power to access your bank accounts and assets. As is the case with a POA, the attorney is under a legal obligation to act in your best interests.
You need to think carefully about who should take this role. The EPOA document needs to be registered with NSW Land Registry Services, if your attorney is to be given the power to buy or sell real estate. You can revoke (cancel) an EPOA or a POA at any time whilst you have capacity.
A guardian is a person you choose to make decisions on your behalf in areas of health (including consent to treatment), welfare and accommodation and personal services. Your guardian needs to be someone you trust. You should ensure the person is willing to take on the role and understands his or her responsibilities. You can appoint more than one person as your guardian.
Enduring Guardianship only comes into effect when you lack capacity to make decisions for yourself.
If someone has a concern for your wellbeing, they can ask the Guardianship Tribunal to review the appointment and actions of your guardian.
5. Advance Care Directive
An Advance Care Directive is a document that sets out the medical care you wish to receive, or not receive, in case you are no longer able to speak for yourself or make your own decisions. It is particularly important when you have a progressive, life-threatening, or terminal illness. You can specify whether you want resuscitation, life support or artificial feeding.
For more information, visit the Advance Care Directives section of the NSW Trustee and Guardianship website. The Directive can be in a separate form or included in the Enduring Guardianship appointment.
Your guardian should have a copy of your Advance Care Directive document and should make all health professionals aware of it including your doctors, hospital and aged care facility. An Advance Care Directive should be drafted in consultation with your doctor, who should witness it and keep a copy.