Estate Planning NSW: Wills, Enduring Powers, and Advance Care Directives

Most people think a Will is all the estate planning they need. It isn't. A Will only operates after you die. Two other legal instruments — an Enduring Power of Attorney and an Enduring Guardian appointment — govern what happens while you are still alive but cannot make decisions for yourself. Without them, the people who love you are left to apply to a tribunal for authority over your life and finances. That process is slow, expensive, and decided by a stranger.

NSW estate planning done properly means completing all three documents at the same time, before anything goes wrong.

The Three Instruments

1. The Will

A Will dictates who receives your assets after you die and names the executor responsible for carrying out your instructions. Without a valid Will, the Succession Act 2006 (NSW) applies a statutory formula — a fixed hierarchy of relatives who inherit in defined proportions, regardless of your actual relationships or intentions.

The statutory formula is inflexible. It does not account for de facto partners in all circumstances, stepchildren, blended family arrangements, or friends you wanted to include. It distributes assets to people who may not need them and excludes people who do.

A Will can also:

• Appoint a guardian for minor children
• Set up testamentary trusts for children or vulnerable beneficiaries
• Direct specific assets to specific people (a car to one child, a piece of jewellery to another)
• Specify funeral wishes (these are not legally binding but provide useful guidance to the executor)

To be valid in NSW, a Will must be in writing, signed by the testator in the presence of two witnesses, and those witnesses must also sign in the testator's presence. Neither witness should be a beneficiary under the Will.

2. Enduring Power of Attorney (EPA)

An Enduring Power of Attorney appoints someone to manage your financial and legal affairs if you lose capacity to make those decisions yourself. Unlike an ordinary Power of Attorney, an EPA continues in force — or comes into effect — when you lose mental capacity. That is its entire point.

An EPA covers:

• Managing bank accounts and investments
• Paying bills and managing ongoing financial obligations
• Buying or selling property on your behalf
• Making legal decisions and signing contracts

It does not cover health and lifestyle decisions. Those are handled by the Enduring Guardian (see below).

Important: If your attorney will need to deal with real estate — signing a contract of sale, transferring title — the EPA must be registered with NSW Land Registry Services. An unregistered EPA will be rejected at LRS. Your solicitor can arrange this at the time of execution.

Without an EPA, if you become incapacitated — through a stroke, dementia, a serious accident — your family has no legal authority to manage your finances. They must apply to the NSW Civil and Administrative Tribunal (NCAT) for a financial management order. NCAT will appoint the NSW Trustee and Guardian as your financial manager if the application is not straightforward or uncontested. NSW Trustee and Guardian charges a capital commission of 4.4% on the first $300,000 of assets and ongoing annual fees. That money comes from your estate.

An EPA costs a few hundred dollars to prepare with a solicitor. It is not optional.

If you are dealing with an estate where these documents were not in place, or where you have been appointed executor and need to understand what happens next, the NSW Estate Settlement Guide covers the full administration process — from probate through to final distribution.

3. Enduring Guardian

An Enduring Guardian appointment gives someone legal authority to make personal, health, and lifestyle decisions on your behalf when you cannot make them yourself. This is completely separate from the EPA, which is financial only.

An Enduring Guardian can:

• Decide where you live (including residential aged care)
• Consent to or refuse medical treatment on your behalf
• Make decisions about your diet, dress, and daily care

All authority granted to an Enduring Guardian ends at the moment of death. From that point, your Will and executor take over.

Without an Enduring Guardian appointment, no one — not your spouse, not your children, not your closest friend — has automatic legal authority to make health and lifestyle decisions for you. If you are admitted to hospital and cannot communicate, and there is no Enduring Guardian in place, the hospital's guardianship team or NCAT will appoint a Public Guardian. The Public Guardian acts in your best interests but has no knowledge of your preferences, relationships, or values.

Appointing an Enduring Guardian means the person who knows you best — whoever you choose — can advocate for what you actually want.

Advance Care Directive

NSW does not have a prescribed statutory form for an Advance Care Directive. Instead, NSW uses a common law directive: a written document, signed and dated, that sets out your wishes about future medical treatment — including the right to refuse specific treatments.

A valid Advance Care Directive refusing treatment is legally binding in NSW. Health professionals are required to follow it. This matters most in end-of-life situations — whether you want resuscitation attempted, whether you consent to artificial nutrition and hydration, what level of intervention you consider consistent with your values.

An Advance Care Directive is most usefully done alongside the Enduring Guardian appointment. Your Enduring Guardian speaks for you in general terms; the directive provides specific instructions that bind treating clinicians even if your guardian is not present or available to be consulted.

NSW Health publishes its own recommended Advance Care Directive template, which is widely recognised by hospitals and GPs across the state. Ask your GP for a copy at the same appointment where you discuss your care preferences.

Why You Need All Three — Done Together

The gap most people leave is this: they prepare a Will but not an EPA or Enduring Guardian. Then they become incapacitated before they die. The Will is useless — it doesn't apply yet. The family has no legal authority to act. NCAT gets involved. Costs accumulate. Decisions are made by strangers with no knowledge of the person or their wishes.

The three documents address three different periods:

They should be prepared at the same time, with the same solicitor, so they are consistent with each other and reflect the same set of intentions.

The right time to do this is before cognitive decline, not after. A Will signed when capacity is questionable can be challenged. An EPA or Enduring Guardian appointment requires the person to understand what they are signing and who they are appointing. Once capacity is lost, the window closes.

Common triggering events where families start thinking about these documents:

• A terminal diagnosis
• A parent moving into residential aged care
• A serious health event (heart attack, stroke) where someone survived but was reminded of their mortality
• Turning 70 and realising these documents still don't exist

The Cost of Not Planning

If you die without a valid Will in NSW, the Succession Act's intestacy rules apply. If there is no executor named or willing to act, the NSW Supreme Court appoints an administrator — often NSW Trustee and Guardian — to administer the estate. Their fees are charged against the estate before beneficiaries receive anything.

If you become incapacitated without an EPA and NCAT appoints NSW Trustee and Guardian as your financial manager, they charge a capital commission of 4.4% on the first $300,000 of managed assets, reducing on a sliding scale above that threshold. On a $500,000 estate under management, that is around $14,200 in commission at the first tier alone, plus annual management fees.

These are not hypothetical figures. They are the actual rates charged by NSW Trustee and Guardian, published on their website, and payable from the assets you intended for your family.

Where to Store the Documents

NSW Trustee and Guardian operates a Will Safe service: your Will is held in secure storage and can be retrieved by your executor after your death through a Deceased Will Enquiry. This is worth using if you do not have a reliable place to store an original document.

More importantly, tell your executor, attorney, and guardian where the documents are. The most carefully drafted Will provides no protection if the executor cannot find the original when it is needed.

If someone in your family has already died and you are navigating the estate administration process, the NSW Estate Settlement Guide provides a complete step-by-step framework — from the first week through to final distribution — including what to do when estate planning documents were not in place.

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