The documents you need (before you need them)

Will
A legal document saying how you want your assets (money, property, possessions) distributed after you die. It names your beneficiaries and your executor (the person who administers your estate).

Beneficiaries
The people or organisations who receive part or all of your estate. Note: Some assets, like superannuation, may be distributed outside your will under special rules.

Power of Attorney
A document where you appoint someone (an attorney) to make financial and legal decisions on your behalf. An enduring power of attorney continues even if you lose capacity.

Enduring Guardian / Medical Decision Maker
Appoints someone to make personal, lifestyle, and healthcare decisions if you can't make them yourself. This is completely separate from financial powers of attorney.

Advance Care Plan
An informal document (not legally binding) that records values, preferences, and wishes for future care. Think of it as a guide for conversations with family and healthcare providers about what matters most. No witnesses or legal requirements needed.

Advance Care Directive
 A formal legal document (binding in most states) that records specific instructions about medical treatment, particularly for end-of-life care. This must be properly witnessed and follow state-specific legal requirements. When valid, doctors and family must follow it.

 

Here's the uncomfortable truth: only 11% of Australians have an enduring power of attorney in place. About 60% don't have a current will. And 86% have no plan at all for what happens if they need care as they age.

Which means most families are heading toward a crisis they could have avoided.

Here's the thing nobody tells you about legal documents for your ageing parents: by the time you desperately need them, it's often too late to get them.

Your mum can't sign a power of attorney when she has advanced dementia. Your dad can't appoint someone to make medical decisions after a stroke has already happened. These documents only work if you have them in place early enough.

And here's the part that might keep you up at night: if these documents don't exist and something happens, you - the daughter who's been quietly managing things - might not be able to help, even though you're the one who's been there all along.

 

Let's be clear about the consequences—and why they fall on you.

If your mum has a stroke and can't communicate

• Without an Enduring Guardian, you can't make medical decisions for her

• Doctors follow a legal hierarchy (spouse first, then all adult children equally)

• If you and your siblings disagree, the hospital keeps providing life-sustaining treatment until someone gets a court order

• That court process takes weeks or months ... and you're the one coordinating it all

If your dad develops dementia and needs care

• Without an Enduring Power of Attorney, you can't access his bank accounts

• His bills go unpaid while you scramble

• You can't sell his house to fund care

• You have to apply to a tribunal to be appointed, which costs money, takes months, and might not appoint you

Real scenario
Your mum falls, breaks her hip, and ends up in hospital. She's confused from the anaesthesia. The hospital wants to discharge her to residential care. Without the right documents, you can't access her funds to pay the bond, can't make the facility decision, can't authorise the house sale. Everything stops while you get a tribunal order. And she's stuck in the hospital.

This happens to families every single day. Don't let the statistics include yours.

 

If you're noticing signs of cognitive decline - repeating conversations, forgetting dates, confusion about recent events - it's important not to ignore things. 

The capacity requirement
To sign legal documents, your parent needs "capacity" at that moment. This means they need to:

• Understand what the document does

• Know who they're appointing and why

• Understand the effect of signing it

• Be making the decision freely

Capacity is decision-specific
 Crucial point: your parent might not manage their money day-to-day anymore, but can still have the capacity to appoint you to manage it. Capacity isn't all-or-nothing.

The witness assesses capacity
When your parent signs, the authorised witness (JP, solicitor, doctor) assesses whether they have capacity at that moment. They'll ask questions to check understanding.

Early-stage dementia
You probably still have time if your parent has early-stage dementia or mild cognitive impairment - they can often still make these documents. They might need:

• A quieter time of day when they're sharper

• The solicitor to take more time explaining

• You to be there to help them focus

• Clear documentation that capacity was properly assessed

What happens as dementia progresses
There's a window—and it closes gradually:

• Early on: They can still sign all documents if they understand at signing

• Middle stage: Might understand simpler documents but not complex ones

• Later stage: Can't sign anything new ... it's too late

The problem with waiting
Dementia doesn't progress linearly. Your parent might have good days and bad days. But once a solicitor assesses that they lack capacity, that's it. No more legal documents can be signed.

What if you're already too late?
If your parent has lost capacity and never made these documents, your only option is to apply to the state tribunal to be appointed as guardian and administrator. This means:

• Proving to a tribunal that they can't make their own decisions

• Months of waiting

• Thousands in costs

• They have no say in who gets appointed

• You might have to share the role with siblings

• Ongoing reporting requirements to the tribunal

If they're in the grey area
Not sure whether they still have capacity?

• Book an appointment with a solicitor who specialises in elder law

• Be honest about your concerns

• The solicitor will assess capacity as part of the appointment

• If they have capacity, get documents done immediately

• If they don't, the solicitor will explain tribunal options

The guilt you might feel
Pushing your parent to sign legal documents while they're starting to decline can feel like taking advantage. It's not.

You're protecting them by making sure their wishes are legally enforceable while they can still express them. Waiting until they "really need it" often means waiting until they can't legally sign anything, and then they lose all control.

 

There are five main documents that protect your parents:

1. Will

Says what happens to assets after death. Without a will, the government decides who gets what, which takes longer and might not match what was wanted.

The stats
About 60% of Australians don't have a current will. That means 60% of families will be dealing with intestacy laws and lengthy estate processes when their parents die.

Critical timing
A will must be made while someone has capacity. Being diagnosed with dementia doesn't automatically mean they've lost the capacity to make a will - but don't wait.

2. Enduring Power of Attorney (financial)

Allows someone to manage money and property - paying bills, accessing bank accounts, selling property if needed.

The stats
Only about 11% of Australians have an enduring power of attorney. That means 89% of families will need tribunal appointments if their parents lose capacity.

The person appointed can only use this power:

• When given permission (the document can specify when it starts), OR

• When the person loses the capacity to make these decisions

3. Enduring Guardian / Medical Decision Maker

Allows someone to make personal, lifestyle, and healthcare decisions - where they live, what medical treatment they receive, and what support services they get.

This only kicks in when the person loses the capacity to make these decisions.

4. Advance Care Directive

Records specific wishes about medical treatment (particularly end-of-life care)so doctors and family know what someone would want.

The stats
86% of Australians have no plan for what happens if they need care as they age. This includes advance care directives. That means 86% of families will be making life-and-death medical decisions without knowing what their parent would have wanted.

Directives can include both instructions (things they definitely do or don't want) and guidance (values that should guide decisions).

5. Superannuation binding death benefit nomination

This one catches people out: Super doesn't automatically go according to someone's will. Beneficiaries need to be nominated directly with the super fund.

Without a binding nomination

• The super fund trustee decides who gets it

• It might not go where intended

• It takes longer to process

How to sort this
Your parent needs to contact their super fund and complete a binding death benefit nomination form.

This must be:

• Signed by them

• Witnessed by two people over 18 who aren't beneficiaries

• Updated every 3 years (for lapsing nominations) or when circumstances change

They can nominate:

• Spouse or de facto partner

• Children (any age)

• Someone financially dependent on them

• Someone in an interdependency relationship with them

• Their legal personal representative (estate)

Why this matters
If your parent wants their super to go to someone who isn't a dependent (like a friend or charity), they need to nominate their legal personal representative, and then their will directs where it goes.

Tax implications
Super paid to a dependent (spouse or young children) is usually tax-free. Paid to adult independent children can be taxed up to 30% plus the Medicare levy. It may be worth getting advice on this.

 

The legal names and forms differ by state. Here's what's needed:

New South Wales

• Will

• Enduring Power of Attorney (financial)

• Appointment of Enduring Guardian (personal/health)

• Advance Care Directive (common law—not statutory)

• Super beneficiary nomination

Victoria

• Will

• Enduring Power of Attorney (financial)

• Appointment of Medical Treatment Decision Maker (health)

• Advance Care Directive (values and instructions)

• Super beneficiary nomination

Queensland

• Will

• Enduring Power of Attorney (can cover both financial AND health)

• Advance Health Directive (medical treatment wishes)

• Super beneficiary nomination

South Australia

• Will

• Advance Care Directive (covers everything—values, instructions, substitute decision-maker)

• Super beneficiary nomination

Western Australia

• Will

• Enduring Power of Attorney (financial)

• Enduring Power of Guardianship (personal/health)

• Advance Health Directive (medical treatment)

• Super beneficiary nomination

Tasmania

• Will

• Enduring Power of Attorney (financial)

• Enduring Guardianship (personal/health)

• Advance Care Directive (medical treatment)

• Super beneficiary nomination

Australian Capital Territory

• Will

• Enduring Power of Attorney (financial and some health)

• Health Direction (specific medical instructions)

• Super beneficiary nomination

Northern Territory

• Will

• Enduring Power of Attorney (financial)

• Advance Personal Plan (health and lifestyle)

• Super beneficiary nomination

Find your state's forms: Advance Care Planning Australia for health documents, Moneysmart.gov.au for will and power of attorney guidance, and your state Public Trustee website for specific forms.

 

Option 1: Do it yourself
Most states have free downloadable forms for power of attorney and enduring guardian documents. Wills can be done through the Public Trustee (sometimes free if they're named as executor).

What's needed:

• The correct forms for your state

• Authorised witnesses (JP, doctor, or solicitor—varies by state)

• Clear conversation about who to trust

Cost: Free to a few hundred dollars

Option 2: Use a solicitor
Costs more but provides:

• Professional advice on appointments

• Help with complex family situations

• Professional capacity assessment if there's cognitive concern

• Confidence documents are correct and won't be challenged

• Advice on tax implications for beneficiaries

Cost: Usually $500-1,500 for a complete estate plan

When to use a solicitor:

• Any concern about cognitive decline or capacity

• Potential for family conflict

• Significant or complex assets

• Siblings might challenge the appointments

• Multiple super funds or complex beneficiary situations

 

1. Get copies and know where originals are
In a crisis, these need to be found fast. "In the filing cabinet" isn't specific enough.

2. Distribute copies to:

• Your parents' GP and other care providers 

• Specialists they see regularly

• Your siblings (even if not appointed)

• The solicitor, if one was used

3. Add to My Health Record (if your parents agree)
Makes advance care directives accessible to doctors in emergencies.

4. Review every few years or when circumstances change

• Marriage, divorce, or de facto relationships

• Birth of children or grandchildren

• Significant change in assets

• Death of the appointed attorney or beneficiary

• Every three years for binding super nominations

5. Contact super funds to confirm nominations are current
Super funds merge and change. Make sure the nomination is still on file and valid.

 

You know why your parents (and maybe you) haven't sorted this out yet:

• "We're not ready to think about this"

• "It feels morbid"

• "We'll do it when we're older"

• "Nothing's wrong with us yet"

• "It's too expensive"

• "We don't know where to start"

But here's what the statistics tell us: 86% of people who put this off end up in crisis without a plan. And when that happens, the cost (emotional and financial) is exponentially higher than sorting it out now.

The families who handle ageing and health crises best aren't the ones who had perfect conversations. They're the ones where at least one person refused to be part of the 86%.

The reality check

These documents aren't about preparing for death. They're about making sure you can help when your parents need help and can't make decisions themselves.

Without them: months of legal processes, thousands in costs, potential family conflict ... while your parents can't get needed care and you're powerless to help.

With them: you step in immediately and handle things the way they'd want.

Your parents are currently in the 89% without enduring power of attorney, probably in the 60% without a current will, and almost certainly in the 86% without a care plan.

Push for this now. While they can. Before you desperately need it.