Wills, Powers of Attorney & Guardianship

A large part of our practice is looking after the concerns of ageing clients and their families in relation to Wills, Powers of Attorney and Guardianship issues and we are happy to make home or hospital visits where necessary.


1. What is a Will?

A Will is a legal document that names the people you want to receive the property and possessions you own at the date of your death. These people are known as your beneficiaries.

Your property and possessions include everything you own: your home, land, car, money in bank accounts, insurance policies, shares, jewellery, pictures, furniture, and so on. Making a Will is the only way you can ensure your assets will be distributed in the way you want after you die.

Every adult should have a Will; they are not only for the elderly or the ill.

2. Why make a Will?

It is very important that your Will is tailor made for you – we are all individuals, with unique family relationships and financial arrangements and while you might think that a Will is a fairly simple document, there are a huge number of pitfalls which may not be obvious to you.

3. Without a Will?

Without a Will, on your death, your assets may not go where you want them to go. The legal procedures are more complicated and time-consuming and may cause expense, worry and even hardship to your family or friends. The law provides a formula which sets out who is entitled to the property of a deceased person, who does not leave a Will. The formula may not distribute your assets in the way you would have wanted.

The making of a Will ensures that your assets pass to the people of your choice. The formula applied when you have no Will does not take into account that you may have a special person or other friends or even charities that you wish to benefit.

4. Can you leave your assets to anyone?

Yes, but you should make proper provision for your spouse and children, including ex-nuptial children. If you do not, they could challenge your Will.

5. How can you make sure your wishes are carried out?

You should appoint in your Will a person called an executor to handle your affairs after you die. If you wish, you can name more than one person to act as executor. You can choose anyone to be your executor: your spouse, relative, a friend, your Solicitor, but you should first ask them if they are prepared to take on the task and confirm with them that they have been appointed.

Being an executor is a very responsible position. The executor has to obtain Probate of the Will and pay any taxes, debts or expenses from the Estate before finally distributing the balance to the beneficiaries named in your Will. An executor who is not a beneficiary may apply to the court for payment for his or her work as executor.

6. Can you alter your Will if you change your mind?

Yes. You are free to alter your Will at any time. If your circumstances change in any way, you can and should alter your Will. However, you cannot simply make an alteration by, for instance, crossing something out on the original Will and writing in your new wishes.

7. What if you marry or divorce?

If you made a will before you married, it will automatically be revoked when you marry, unless it was made with a particular marriage in mind, or expressly stated that it was made in contemplation of marriage. So if you marry, it is more than likely you will need to make a new Will.

Any gift or appointment (e.g. as an executor or guardian) in favour of a former spouse in your Will is automatically revoked when a divorce decree becomes absolute or a decree of nullity is made. It is in your best interest to make a new will or codicil if you are divorced or have been separated for an extended period.

Once you have made your Will you should ensure a number of copies of it are stored in easily accessible locations so that it can be easily found on your death and you should always advise your executor where the original Will is located.

You should take time to reconsider your Will from time to time after any change in your life circumstances.

8. How we can help you

We will ensure that your Will is valid – that is: properly drawn, signed and witnessed.

We will make sure your wishes are clearly expressed in the Will.

We can advise you regarding adequate provisions for your spouse and children, or for any former spouse or any dependants.

You may wish to see an Accountant as to any possible liability for Capital Gains Tax which might result from provisions you intend to make in your Will.

We can advise you on choosing an executor and on the executor’s rights to be paid for his or her time and trouble in administering your estate.

We can advise you on the best way to arrange your affairs.

We will keep your Will in a safe place, at no extra charge.

Give you peace of mind.

9. The NSW Trustee & Guardian

If you have made a Will through your Local Court House it is almost certain that The NSW Trustee & Guardian has been appointed as your Executor. The effect of this is that The NSW Trustee & Guardian will charge your Estate to Administer your Will. The charges made are usually far greater than if you choose your own responsible person as your Executor and have your Estate handled by a private lawyer.

If you wish to make a Will please contact us with your Will instructions and we will prepare a draft for discussion and your approval by return mail, fax or e-mail.

Power of Attorney & Guardianship

A Power of Attorney is an important and powerful legal document and you should get legal advice before you sign it. It enables you to plan ahead and appoint someone you trust to make decisions about your money and property if you lose capacity to do this for yourself. A Power of Attorney is also useful if you suffer an illness or are going interstate or overseas and need someone to manage your affairs or business while you are absent.

A power of attorney gives the person you appoint (your “ attorney ”) the authority to buy and sell real estate, shares and other assets for you, to operate your bank accounts, to spend your money and to exercise many other powers. It is of no effect after you die.

An attorney must always act in the best interests of the principal. Unless the attorney is expressly authorised, the attorney cannot gain a benefit from being an attorney.

If the attorney is signing documents that affect real estate, the power of attorney must be registered at the NSW Land Registry Services, www.nswlrs.com.au.

A Power of Attorney is not about appointing someone else to make personal, lifestyle and medical decisions. For this you need an Appointment of Enduring Guardianship . We all prefer to decide for ourselves where we live, who we see, which doctor we go to, what medical treatment we will receive and what services we will have. Unfortunately this is not always possible. Every day people are involved in accidents or become sick. Sometimes this can lead to them being unable to make decisions for themselves.

Amendments to the Guardianship Act now give you a way to appoint an enduring guardian. You can appoint more than one guardian if you wish. You can choose what decisions your guardian can make for you.

1. What is an enduring guardian?

An enduring guardian is someone you choose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself. You choose which decisions you want your enduring guardian to make. These are call functions. You can give your guardian directions on how to carry out the functions.

2. What sort of decisions can an enduring guardian make?

You can give your enduring guardian as many or as few functions as you like. The form includes examples of possible functions. You can delete the functions you do not want your guardian to have and add others if you wish. You may give the guardian directions about how to exercise the decision-making functions you give them. For example, you can direct your guardian to consult with your close friend on each function whenever possible. You can give your guardian a function, for example to decide where you should live, and direct that they can override your objection to their decision if it is in your best interests to do so. You cannot give your guardian the authority to override your objection to medical treatment. Only the Guardianship Division of the NSW Civil & Administrative Tribunal can do this.

3. What sort of decisions is an enduring guardian unable to make?

An enduring guardian cannot make a will for you, vote on your behalf, consent to marriage, manage your finances or override your objections, if any, to medical treatment.

4. Who can appoint an enduring guardian?

If you are over 18 years, you can appoint one or more people to be your guardian. When you appoint an enduring guardian you must have the capacity to understand what you are doing.

5. Who can be an enduring guardian?

The person you appoint as your enduring guardian must be at least 18 years old. Your chosen guardian should be someone you trust to make decisions in your best interests if you are not capable of making decisions for yourself. Your guardian must act within the principles of the Guardianship Act , in your best interests and within the law. You cannot give your guardian a function or a direction which would involve them in an unlawful act.

The appointed guardian cannot be a person providing treatment or care to you on a professional basis at the time of appointment. You can appoint more than one person. If you appoint more than one enduring guardian, you can direct them to act jointly or separately. If you want the guardians to act jointly on every function, complete only one form. If you appoint more than one guardian and give them different functions, you need to complete a separate form for each guardian.

6. How do I appoint an enduring guardian?

You need to discuss the appointment with your chosen guardian and make sure they are willing to take on this responsibility if you can no longer make decisions for yourself.

It would be wise to discuss the functions in detail and ensure that your guardian clearly understands your wishes and any direction associated with any function.

You may also wish to discuss the appointment with other significant people in your life.

You then need to make an appointment to complete the form and have one of our lawyers witness you and your enduring guardian signing the form.

7. What should I do with the Appointment document?

It’s a good idea to keep the appointment form in a safe place and we can store the original in safekeeping for you free of charge. You then need to tell your Guardian where it is and give a copy to your guardian. You may wish to give copies to other significant people in your life.

8. When does it take effect?

The appointment of your enduring guardian takes effect only if you become unable to make your own personal or lifestyle decisions. Your guardian may wish to seek the opinion of a medical practitioner about your capacity to make decisions before acting on your behalf.

9. Can I change my mind?

While you are capable of making your own decisions, you can revoke the appointment of an enduring guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. This form will need to be witnessed by one of our lawyers and then you must advise the enduring guardian in writing that their appointment has been revoked.

You can appoint a new person as your enduring guardian. You will need to complete a new form provided they accept their appointment.

If you are still capable of making your own decisions you can amend the appointment by completing another form. Only the Guardianship Division can make changes to the appointment if you have lost the capacity to do this for yourself.

10. What if someone else has concerns about the actions of my enduring guardian?

If you are not capable of making your own decisions and others are concerned about your welfare because of your enduring guardian’s actions, anyone with a genuine concern for your welfare can apply to the Guardianship Division for a review of the appointment. The Guardianship Division can revoke the appointment or confirm it. It may also change the functions in the appointment or make a guardianship order.

The Guardianship Division does not supervise enduring guardians and will only become involved if it receives an application with respect to you or receives information that leads it to initiate a review of your appointment in your interests.

11. What if I don’t appoint an enduring guardian to make those personal decisions for me?

The State Government via the Guardianship Division might be appointed in that role.

Delays can be experienced in relation to the making of decisions in respect of your personal care where no one has readily exercisable authority to make those decisions about your treatment etcetera. You may have expressed a wish as to how you wish to be treated in regard to any particular illness or other affectation to your family or close friends, but this will not be known to a Guardianship Division and your treatment may not be in accordance with your wishes.

It simply makes sense to have someone who cares about you making personal decisions about you if you are unable to make them due to illness or infirmity

12. When does enduring guardianship end?

Enduring guardianship ends when you die, if you revoke the appointment, or if the Guardianship Division makes a guardianship order or suspends the appointment.

13. Minor and major medical treatment

Minor and major medical treatments include all medical and dental treatments except the following treatments, which only the Guardianship Division can consent to:

  • Sterilisation – includes vasectomy and tubal occlusion
  • Termination of pregnancy
  • Aversives – mechanical, chemical or physical
  • Any new treatment that has not gained the support of a substantial number of doctors or dentists specialising in area
  • Use of medication that affects the central nervous system when dosage, duration or combination is outside accepted norms
  • Androgen-reduction medications for behavioural control

14. Evidence of appointor’s capacity

Under section 6N, in any proceedings in which the question of whether, on a particular day or during a particular period, the appointor of an enduring guardian was a person in need of a guardian is in issue, the certificate of medical practitioner to the effect that the appointor was, on that day or during that period, totally or partially incapable of managing his or her person because of a disability is evidence of the fact that the appointor was a person in need for a guardian.