Important considerations – Wills & Powers of Attorney

What is a Will?

A will is a legal document that outlines how your property and possessions should be distributed after your death. Writing a will is an important step you can take to ensure your wishes are fulfilled on your death and to provide clarity to your loved ones about those wishes. Leaving assets behind without a valid will creates uncertainty and complexity for your loved ones that is best avoided.

What do I need to consider when making a Will?

Before making a Will there are a few things to consider.

Firstly, it is worthwhile thinking about who you would like to be your executor. That is, someone you trust who you would like to manage the administration of your estate after your death, very often with the help of solicitors. All wills require the appointment of an executor in order to be valid. It is also a good idea to have a back-up executor named in your will to act in the place of the primary executor, if for any reason that person cannot act.

Secondly, you would need to think about your assets and whether you own them in your own name, or with another person.

If you have children under 18 years of age, you should also identify who you would like to act as their guardian in the event both parents/guardians are deceased.

Finally, and as probably goes without saying, give some thought to who you would like your assets to be distributed to, including any specific gifts to individuals. You may also wish to consider whether you would like to include a gift to charity.

What about Powers of Attorney?

People often have Powers of Attorney prepared at the same time as doing a new will, however the two documents are very different.

Powers of Attorney are documents that are for use during your lifetime and they cease to have any validity on your death. They can be very useful and important documents which give another person/s the power to make decisions for you and on your behalf while you are alive. You need to plan ahead as ensuring someone else has this power becomes critical when you cannot make a decision for yourself and need someone else to act for you.  If you don’t you need them now, that means now is the time to make them – by the time a need arises it may be too late as you can’t put these in place when you’ve lost capacity to make decisions for yourself.

There are several different types of Power of Attorney and they enable you to:

  • appoint someone to make medical decisions for you in future if you do not have capacity to make a decision for yourself (Appointment of a Medical Decision Maker);
  • appoint a person or multiple people to make lifestyle or financial decisions for you in future if you don’t have the capacity to make a decision for yourself (Enduring Power of Attorney)
  • appoint someone to support you to make decisions (Supportive Power of Attorney).

Just like your Will, you can revoke your Power of Attorney and change it at any time, so long as you still have capacity to make decisions for yourself.

What do I need to consider for Powers of Attorney?

In considering who to appoint to have legal authority to make decisions for you, you need to consider what qualities are important to you. You may wish to ensure the person you appoint is:

  • Trusted by you;
  • Has the experience and time required to act for you;
  • Is prepared to listen to you and act on your wishes;
  • Understands the responsibility involved in the role; and
  • Understand and respects your culture, family and community.

As with Wills, your situation and that of your executors and persons appointed under a Power of Attorney will change over time, so it is important to review this regularly – at least every 2 years.  Once you no longer have capacity to make a decision for yourself you are unable to change who has been appointed to make decisions for you, without Court intervention.

Wills and Powers of Attorney are important documents which require early planning, thorough consideration, careful preparation and regular review. Planning for your future is ongoing throughout your lifetime and we are here to assist you with every step along the way.  Contact us to review your situation and put in place a plan for the next stage of life.

Author: Marnie Papst

Published: 22 March 2024


The information in this article is general in nature and is not to be relied upon as legal advice. As always, we recommend you seek thorough legal advice to consider your own circumstances and determine whether the information contained in this article is applicable to you.  This article is current as at the date of publishing but will not be updated as circumstances change.