If you’ve started thinking about estate planning, you’ve probably encountered three terms that sound similar but leave you wondering what each one actually does: Will, Power of Attorney, and Enduring Guardianship. Many people assume one document covers everything, or they prepare a Will and think they’re sorted.

The reality is more nuanced. These three documents serve completely different purposes and operate at different times in your life. A Will only takes effect after you die. Power of Attorney operates while you’re alive but deals only with financial matters. Enduring Guardianship also operates during your lifetime but covers medical and lifestyle decisions.

To protect yourself and your family comprehensively, you need all three. Let’s break down what each document does, when it applies, and why leaving any one out creates dangerous gaps in your planning.

What Is a Will?

A Will is a legal document that explains how you want your assets distributed after you die and who you want to manage that process.

What Does a Will Control?

Your Will determines three main things. First, it directs who receives your property, money, investments, and personal belongings after your death. Second, it appoints an executor who will gather your assets, pay your debts, and distribute your estate according to your wishes. Third, if you have children under 18, your Will nominates who should care for them if both parents die.

When Does a Will Take Effect?

This is the crucial point that often confuses people: your Will only operates after you die. It has absolutely no effect during your lifetime, no matter what happens to you.

If you become seriously ill, develop dementia, or are in a coma, your Will cannot help. It only springs into action after your death.

What Happens Without a Will?

If you die without a valid Will (called dying “intestate“), NSW law determines how your assets are distributed using a predetermined formula. This may not reflect your actual wishes, and it often creates complications and delays for your family.

The government decides who administers your estate, which can be time-consuming and expensive. Family disputes become more likely when there’s no clear direction from you.

Your Will is essential for ensuring your assets go to the people you choose after death, but it does nothing to protect you during your lifetime if you lose the ability to make decisions for yourself.

What Is Power of Attorney?

Power of Attorney is a legal document that appoints someone (your attorney) to make financial and legal decisions on your behalf during your lifetime.

What Does Power of Attorney Mean?

When you give someone Power of Attorney, you’re authorising them to handle your financial affairs. This might include paying bills, managing bank accounts, dealing with investments, buying or selling property, and making business decisions.

Your attorney acts according to your instructions while you have capacity, or in your best interests if you lose capacity due to illness or injury.

What Is Enduring Power of Attorney?

There are two types of Power of Attorney in NSW. A General Power of Attorney ends if you lose mental capacity, typically used for short-term situations when you’re unable to manage your affairs temporarily (for example, if you’re overseas or hospitalised briefly).

An Enduring Power of Attorney continues even if you lose mental capacity. This is the document most people need for comprehensive protection, specifically designed to keep operating if you develop dementia, suffer a stroke, or otherwise lose the ability to make financial decisions.

What Can Power of Attorney Do?

Your attorney can handle all financial and legal matters. They can access and manage your bank accounts, pay bills and manage day-to-day expenses, deal with government agencies like Centrelink, manage investments and superannuation, buy, sell, or lease property, run your business, and make decisions about insurance.

When Does Power of Attorney Take Effect?

You can choose when your Power of Attorney begins. It can start immediately upon signing, or only when you lose capacity (this requires certification from a doctor).

Importantly, Power of Attorney ends automatically when you die. At that point, your Will takes over and your executor manages your estate.

How Do I Get Power of Attorney in NSW?

To create an Enduring Power of Attorney in NSW, you must complete the prescribed NSW form, sign it in the presence of an authorised witness (solicitor or other prescribed witness), have your attorney also sign accepting the appointment, and ensure the document is properly executed according to legal requirements.

While you can technically complete the forms yourself, mistakes in execution can invalidate the document entirely. Given the significant powers you’re granting, professional legal advice ensures the document is valid and includes appropriate protections.

Power of Attorney gives someone authority over your financial affairs during your lifetime, but it has nothing to do with medical decisions or what happens after you die. You need separate documents for those situations.

What Is Enduring Guardianship?

Enduring Guardianship is a legal document that appoints someone (your guardian) to make medical and lifestyle decisions on your behalf if you lose the capacity to make these decisions yourself.

What Is Guardianship?

A guardian is someone legally authorised to make personal, medical, and lifestyle decisions for another person. When you appoint an enduring guardian, you’re choosing who will make these decisions if you cannot make them yourself due to illness, injury, or cognitive decline.

When Does Enduring Guardianship Come Into Effect?

Your Enduring Guardianship only operates when you lack the capacity to make your own medical and lifestyle decisions. It does not take away your rights while you remain capable of making decisions.

A doctor or medical professional typically determines when you’ve lost capacity. This might be temporary (such as being unconscious after an accident) or permanent (such as advanced dementia).

What Does an Enduring Guardian Do?

Your guardian can make decisions about medical treatment, healthcare services, accommodation, and daily services.

For medical treatment, they consent to or refuse medical procedures, surgeries, and treatments on your behalf, including both routine and major medical decisions. They arrange medical appointments, choose healthcare providers, and decide on rehabilitation services. They also decide where you should live, including whether you need to move into an aged care facility or other supported accommodation. Finally, they arrange support services you might need, such as home care, meal delivery, or disability services.

Your guardian cannot make financial decisions (that’s what Power of Attorney covers) and cannot make decisions about your assets or estate (that’s what your Will covers).

Real-World Examples of Guardian Decisions

To understand the scope of guardianship, consider these scenarios.

If you’re in a coma following a car accident, your guardian consults with doctors and makes decisions about surgery, rehabilitation, and ongoing treatment. If you develop dementia and can no longer live safely at home, your guardian arranges home care services, and later decides when it’s time to transition into an aged care facility. If you suffer a stroke and cannot communicate, your guardian discusses treatment options with doctors and decides whether to proceed with high-risk surgery. If you’re terminally ill and unconscious, your guardian makes decisions about palliative care, pain management, and whether to continue life-sustaining treatment.

What Is an Enduring Guardian Compared to Next of Kin?

Many people assume their next of kin automatically has the right to make medical decisions. This is not correct in NSW.

Without an Enduring Guardianship document, medical professionals may consult your next of kin, but they’re not legally required to follow their wishes. In disputed situations, applications to the NSW Civil and Administrative Tribunal (NCAT) may be necessary, causing delays and family conflict during already stressful times.

An Enduring Guardianship document gives your chosen person clear legal authority, avoiding uncertainty and potential disputes.

Enduring Guardianship protects you by ensuring someone you trust makes medical and lifestyle decisions if you cannot. It operates separately from Power of Attorney (financial) and your Will (after death), covering a critical gap that neither of those documents address.

Why You Need All Three Documents

Each document serves a distinct purpose at different times in your life. Missing any one creates significant gaps in your protection.

The Complete Timeline

While You’re Healthy and Capable

You make all your own decisions about finances, medical treatment, and lifestyle. Your Will, Power of Attorney, and Enduring Guardianship sit quietly in the background, ready if needed but not interfering with your autonomy.

If You Lose Capacity During Your Lifetime

This is where Power of Attorney and Enduring Guardianship become essential. Your Power of Attorney steps in to manage your finances: paying bills, managing investments, dealing with banks, and handling property matters. Your Enduring Guardianship steps in to manage medical and lifestyle decisions: consenting to treatment, arranging care, and deciding on accommodation.

Without these documents, your family faces expensive and time-consuming tribunal applications to get authority to help you.

After You Die

Your Power of Attorney and Enduring Guardianship end immediately upon your death. Now your Will takes over, directing how your assets are distributed and who manages your estate.

Without a Will, the government determines how your assets are divided, which may not reflect your wishes.

What Happens If You’re Missing One?

If You Only Have a Will (No Power of Attorney or Guardianship)

You develop dementia and can no longer manage your affairs. Your family cannot access your bank accounts to pay your bills, cannot sell your property to fund aged care, and has no legal authority to make medical decisions on your behalf. They must apply to NCAT for guardianship and financial management orders, a process that takes months and costs thousands of dollars.

If You Have a Will and Power of Attorney (But No Guardianship)

You suffer a stroke and are hospitalised, unable to communicate. Your attorney can manage your finances, but when doctors need consent for surgery or to discuss end-of-life care, there’s no one with legal authority to make these decisions. Medical staff may proceed based on their judgment rather than your wishes, or delay treatment while seeking tribunal orders.

If You Have Power of Attorney and Guardianship (But No Will)

You die unexpectedly. Your attorney and guardian’s authority ends immediately. Your family discovers you have no Will, so the government determines who inherits your estate. Your partner might not receive what you intended, your children’s inheritance is delayed by lengthy probate processes, and family disputes arise over asset distribution.

How These Documents Work Together

Think of it this way: your Will operates after you die, controlling what happens to your assets. Your Power of Attorney operates during your life when you need financial help, controlling your money and property. Your Enduring Guardianship operates during your life when you need medical help, controlling healthcare and lifestyle decisions.

Will: After death → Asset distribution

Power of Attorney: During life → Financial decisions

Enduring Guardianship: During life → Medical and lifestyle decisions

Each document covers a different time and a different type of decision. You need all three for complete protection.

Common Questions About Estate Planning Documents

Can a Power of Attorney Change a Will?

No. Your attorney has no authority to create, change, or revoke your Will, even with an Enduring Power of Attorney.

A Will can only be changed by you while you have mental capacity, or in very limited circumstances by court order. This separation protects your estate wishes from interference.

If someone needs to change your Will after you’ve lost capacity, they would need to apply to the Supreme Court of NSW, which only grants permission in exceptional circumstances with strong justification.

When Does an Enduring Power of Guardianship Come Into Effect?

Enduring Guardianship only comes into effect when you lack the capacity to make your own medical and lifestyle decisions. This is typically determined by a doctor or medical professional who assesses whether you understand the nature and consequences of decisions being made.

Capacity can be temporary or permanent. You might lack capacity while unconscious after an accident but regain it during recovery. Alternatively, you might progressively lose capacity due to dementia or Alzheimer’s disease.

Importantly, your guardian cannot override your decisions while you remain capable of making them yourself. The document only activates when you genuinely need someone to decide on your behalf.

How Do I Get Power of Attorney in NSW?

Creating a valid Enduring Power of Attorney in NSW requires using the prescribed NSW legal form, understanding the significant powers you’re granting, choosing an attorney you trust completely with your financial affairs, signing the document in the presence of a solicitor or other authorised witness, having your attorney sign to accept the appointment, and ensuring proper execution according to strict legal requirements.

While the forms are available online, mistakes in completion or witnessing can invalidate the entire document. Given that you’re giving someone extensive control over your finances, professional legal advice ensures the document is valid and includes appropriate safeguards.

Do I Need a Lawyer to Make These Documents?

Technically, you can complete these documents yourself using publicly available forms. However, there are significant risks.

For Wills, homemade versions often contain ambiguous language, miss important clauses, or fail to be properly executed. These problems emerge after your death when you cannot fix them, potentially leading to costly disputes and family conflict.

For Power of Attorney, incorrect execution invalidates the document entirely. When you need it activated (because you’ve lost capacity), it’s too late to fix mistakes.

For Enduring Guardianship, similar execution requirements mean errors can invalidate the document precisely when your family needs it most.

Professional legal advice ensures these documents are valid, comprehensive, and actually protect you when needed. The cost of preparation is minimal compared to the potential costs of tribunal applications, family disputes, and legal challenges if documents are invalid or poorly drafted.

Can I Use a Will Kit?

Will kits from newsagents or online services may seem convenient and affordable, but they carry significant risks. Generic templates may not address your specific situation, complex family situations (blended families, business ownership, international assets) require tailored advice, execution errors can invalidate the entire document, and missing clauses can create unintended consequences.

Most concerning, problems with a will kit only emerge after you die, when it’s too late to fix them. Your family faces the consequences and costs of rectifying a poorly drafted or invalid Will.

Professional will preparation provides peace of mind that your wishes will be respected and your family protected.

Getting Your Estate Planning Documents in Order

The most effective approach is to prepare all three documents together as part of a comprehensive estate planning strategy.

Who Should You Appoint?

You can appoint the same person for all three roles, or choose different people based on their strengths.

For your attorney (financial matters), choose someone who is financially responsible, trustworthy, and capable of managing money and legal matters. This might be your spouse, adult child, or trusted friend.

For your guardian (medical and lifestyle), choose someone who understands your values, knows your wishes regarding medical treatment, and can make difficult decisions under pressure. This might be your spouse, adult child, or close family member.

For your executor (after death), choose someone organised, reliable, and capable of handling the administrative work of managing an estate. This might be the same person as your attorney, or someone different.

You should also appoint backup people for each role in case your first choice is unable or unwilling to act when needed.

The Process

Creating comprehensive estate planning documents involves an initial consultation where you discuss your situation, family structure, assets, and wishes with a lawyer. Your lawyer then prepares all three documents tailored to your circumstances. You review the documents, ask questions, and sign them with proper witnessing. Documents are stored securely and copies provided to relevant people. You should also plan to update documents when circumstances change (marriage, divorce, births, deaths, significant asset changes).

When to Review Your Documents

Review your estate planning documents every 3-5 years as a matter of course, after major life events (marriage, divorce, births, deaths), when your financial situation changes significantly, if you move interstate (laws differ between states), if your chosen attorney, guardian, or executor becomes unsuitable, and when legislation changes affect estate planning.

NSW-Specific Requirements

Estate planning laws vary between Australian states. These documents must comply with NSW legislation. Wills are governed by the Succession Act 2006 (NSW), Power of Attorney is governed by the Powers of Attorney Act 2003 (NSW), and Enduring Guardianship is governed by the Guardianship Act 1987 (NSW).

Using forms or advice from other states can create invalid documents in NSW. Ensure your documents comply with current NSW legal requirements.

Protect Your Future With Complete Planning

Estate planning isn’t just about what happens after you die. It’s about protecting yourself and your family throughout your life, ensuring someone you trust can make decisions when you cannot.

A Will alone leaves dangerous gaps. Without Power of Attorney, your family cannot manage your finances if you lose capacity. Without Enduring Guardianship, no one has clear authority to make medical decisions on your behalf.

Comprehensive estate planning means having all three documents in place: a Will for after your death, Power of Attorney for financial matters during your lifetime, and Enduring Guardianship for medical and lifestyle decisions if you cannot make them yourself.

Ready to get your estate planning sorted?

Our wills and estates team can help you prepare all three documents together, ensuring complete protection for you and your family. Call us or book your consultation to discuss your estate planning needs. With the end of the year approaching, now is the ideal time to finalise these important documents and start the new year with peace of mind.