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Why every adult should have a Will, a Power of Attorney and an Appointment of Enduring Guardian.

Estate planning is not just about death or for the elderly and wealthy.  It is about protecting yourself and your family during life as well.

Having the right legal documents in place ensures that trusted people can step in to manage important matters, reducing stress and uncertainty for loved ones during what may already be a difficult time.

Life can change unexpectedly.

Planning ahead today and getting the right advice can save your family significant difficulty tomorrow.

Let’s start with the basics – what is a Will?

A Will is a legal document that sets out your wishes for what should happen to your assets after your death.  It allows you to determine who will inherit your property, savings, personal belongings and other assets.  It also allows you to appoint an executor who will be responsible for administering your estate and ensuring your wishes are carried out.

If you have young children a Will is particularly important because it enables you to express your wishes about who should care for them if both parents pass away.

Many people delay making a Will because they believe they do not own enough assets to justify one or because they think they have plenty of time.  Others assume everything will simply pass to their spouse or children.  Unfortunately, it is not that straightforward. Without a valid Will, your estate may be distributed according to legislation rather than according to your personal wishes.

A properly prepared Will provides certainty and can help reduce the likelihood of disputes among family members. It can also make the administration of an estate more efficient and less stressful for loved ones.

It is important to obtain legal advice when preparing a Will. There are specific legal requirements about how a Will must be drafted, signed and witnessed to ensure it is valid. A lawyer can also help identify issues that may not be immediately obvious, such as blended family situations, family trusts, superannuation death benefits or potential claims against an estate. Taking advice now can help avoid uncertainty, disputes and unnecessary costs for your loved ones later on.

What happens if you die without a Will?

One of the most important reasons for making a Will is that without one, the law decides who inherits your estate.

Dying without a valid Will is known as dying “intestate”. In these circumstances, legislation determines who inherits your assets. This means, the distribution of your estate may not reflect your personal wishes, family circumstances or relationships.

For example, blended families can face particular difficulties when a person dies without a Will.  A person may have intended to provide for a stepchild, a close friend, a charity, or a particular family member, but without a valid Will those wishes may not be known or acted upon.

There can also be practical problems. Family members may need to apply to the Supreme Court to obtain authority to administer the estate, which can result in additional costs, delays and complexity.

In some cases, disagreements can arise about who should administer the estate or who should benefit from it. These disputes can place significant emotional and financial strain on families at an already difficult time.

Simply put, if you do not make a Will, the law makes these decisions for you.

What is an Enduring Power of Attorney and why is it important?

An Enduring Power of Attorney is a legal document that allows you to appoint someone you trust to make financial and legal decisions on your behalf if you lose the ability to manage your own affairs.  Unlike a general Power of Attorney, an Enduring Power of Attorney continues to operate even if you lose the ability to make your own decisions.

Many people assume that their spouse or adult children will automatically be able to access bank accounts or manage their affairs if they become incapacitated. In many circumstances, that is simply not the case.

Banks, government agencies and other institutions generally require legal authority before they will allow another person to act on your behalf or even discuss your affairs with family members.

The person you appoint, known as your attorney, may be able to:

• operate your bank accounts;
• pay bills and expenses;
• manage investments;
• buy or sell property;
• deal with shares and superannuation matters;
• deal with government agencies; or
• sign legal documents on your behalf.

Importantly, a Power of Attorney only operates during your lifetime. It ceases upon your death, at which point your executor takes over responsibility for your estate.

Without an Enduring Power of Attorney, your family may need to apply to a court or tribunal for a financial management order before decisions can be made about your finances. This process can be costly, stressful and time-consuming at a time when your loved ones may already be coping with a difficult situation.  Having an Enduring Power of Attorney in place can avoid these difficulties and ensure someone trusted can step in immediately if needed.

What is an Appointment of Enduring Guardian and why is it important?

Many people are surprised to learn that a Power of Attorney does not give someone authority to make medical or lifestyle decisions.  It should be noted that the position is different in Queensland and the ACT where an Enduring Power of Attorney may also authorise a person to make personal health decisions.

Those decisions are generally covered by an Appointment of an Enduring Guardian.  An enduring guardian is a person you nominate to make important personal, lifestyle and health care decisions if you lose capacity or become unable to make those decisions yourself.

Depending on the powers you grant, an enduring guardian may make decisions about:

• medical and dental treatment;
• health care services;
• where you live;
• aged care arrangements;
• personal support services; or
• lifestyle and welfare matters

An enduring guardian does not control your money or finances. Their role is entirely separate from that of an attorney although the same person can be appointed to both positions.

For some people, the most significant decisions made late in life involve medical treatment, living arrangements and end-of-life care. Appointing an enduring guardian allows you to choose who will make those decisions and ensures your personal values and preferences are respected.

Why do these documents matter at any age?

A common theme running through all of these documents is that they are often left until it is too late.

While ageing can increase the likelihood of incapacity, younger adults are not immune from unexpected illness, accidents or injury.

People buying their first home, starting a family, running a business, travelling overseas or caring for children all have good reasons to have these documents in place.

The best time to prepare them is while you are healthy and capable of making clear decisions.

Do you ever need to update these documents?

Making a Will, Enduring Power of Attorney and an Appointment of an Enduring Guardian is not a once-only exercise.

These documents should be reviewed regularly, particularly after major life events such as:

• marriage or separation;
• divorce;
• the birth of children or grandchildren;
• death of a spouse, attorney, guardian or executor;
• significant changes in assets; or
• changes in personal relationships.

Even if there have been no major life changes , it is sensible to review your estate planning documents regularly to ensure your documents continue to reflect your wishes and remain appropriate for your circumstances.

This article was published on 9 November 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au).