Setting up Legal Directives
SETTING UP LEGAL DIRECTIVES & INSTRUCTIONS
Why Your Legal Papers Matter
Planning for the future isn't about giving up control—it's about keeping control, no matter what happens. When you put your wishes in writing now, you make sure your decisions about your money, property, and health are always respected.
This is one of the kindest gifts you can give to your family. It makes your choices clear, which takes away stress and stops disagreements during difficult times.
Step 1: Choose Your Trusted Support
The most important step is choosing the right people for three distinct roles. These people must be completely trustworthy and always do what is best for you.
Your Attorney (for Money & Property): This person is your "Money Manager." They look after your finances if you are unable to. They will be appointed in your Enduring Power of Attorney.
Who to choose? Someone who is:
Honest and completely trustworthy with money.
Financially responsible and organised.
Willing and able to carry out the role.
Able to keep clear records.
Your Guardian (for Health & Lifestyle): This person is your "Health Advocate." They make decisions about your health care and where you live if you can no longer decide for yourself. They are appointed in your Enduring Guardianship.
Who to choose? Someone who:
Understands and respects your values and wishes about life.
Can make difficult decisions under pressure.
Is a good communicator and can advocate for you with doctors.
Your Executor (for Your Will): Your Executor (for Your Will) This person is responsible for carrying out the instructions in your Will after you pass away. They ensure your assets are distributed as you wished. They are appointed in your Will.
Who to choose? Someone who is:
Organised, responsible, and can handle paperwork.
Fair-minded and can communicate well with your beneficiaries.
Able to manage the legal and financial tasks required
ACTION TRIGGER: No Representatives Appointed? If you have not appointed an Attorney or Guardian, this is a critical priority. Without them, a court or tribunal may need to appoint someone for you.
Step 2: The Three Most Important Legal Papers
These three legal documents work together to protect you and your wishes.
1 . Enduring Power of Attorney
What it does: Lets your chosen Attorney manage your money and property. You can decide if it starts immediately or only if you lose the ability to make decisions.
Key Points:
You can set limits on your Attorney's powers.
You can appoint more than one attorney and require joint and/or severally decisions.
A substitute attorney(s) can be appointed if first appointed guardian(s) cannot act.
A Power of Attorney must be registered with NSW Land Registry Services for land and share transactions.
Execution Requirements:
The document must be signed in the presence of a “prescribed witness”. This includes a solicitor.
A witness certificate: The witness must explain the effect of the EPA to the principal and satisfied that the principal appeared to understand.
Attorney’s Acceptance: The appointed attorney(s) must sign the document, accepting the role as Attorney.
Get the form: Enduring Power of Attorney form
2 . Enduring Guardian
What it does: Allows your Guardian to make health and lifestyle decisions for you if you can't make them for yourself.
Key Points:
This document only becomes active when a doctor confirms you have lost the capacity to make your own decisions.
You can appoint more than one guardian and require joint and/or severally decisions.
Directions can be included in the Enduring Guardianship form to tell Enduring Guardian(s) how to use their authority. e.g. You can direct them to seek advice from your doctor before they make certain decisions.
A substitute guardian(s) can be appointed if first appointed guardian(s) cannot act.
Execution Requirements:
The document must be made while you have capacity.
The document must be signed in the presence of an authorised witness. This includes a solicitor.
The witness must explain the document to the principal and confirm capacity.
Guardian’s Acceptance: The appointed guardian(s) must understand and accept their roles before signing the document.
Get the form: Appointment of Enduring Guardian
3 . Will
What it does: Clearly states who should receive your property and assets (your "estate") after you die.
Key Points:
If you don't have a Will, the law decides how your assets are divided, which may not be what you wanted.
Execution Requirements: The document must be signed by the testator in the presence of two independent adult witnesses (not beneficiaries or spouses).
ACTION TRIGGER: No Will or an Outdated Will? A Will is the foundation of your estate plan. If you don't have one, or if it's over 3 years old, it's urgent to create or update it.
Step 3: Smart Steps to Protect Yourself
Putting your trust in others is important, and so is having smart rules in place to protect you.
The Two-Person Rule (The Best Safety Tip)
Never give just one person complete control. For very big decisions, it's safer to require two of your trusted support people to agree and sign off. This is a great way to protect you and can also reduce family disagreements.
Big decisions could include:
Selling your home.
Taking out a large amount of money from the bank (for example, over $5,000).
Moving you into aged care.
The Decision Logbook
Ask your trusted support people to keep a simple notebook to write down any big decisions they make for you. This helps everyone in the family see what is happening, which builds trust and keeps things clear.
Your Action Plan: Get It Done
Follow these steps to put your plan in place.
Talk to Your People: Call the people you have in mind and ask if they are willing to take on these important jobs for you.
Get the Forms: You can download the official NSW forms for Enduring Power of Attorney and Enduring Guardianship online.
See a Lawyer: A lawyer can help you prepare your documents, ensure all documents are completed, and signed correctly to meet legal requirements.
Store Originals Safely: Your original documents are precious.
Best Options: Store them with your solicitor or in the Will Safe service at NSW Trustee & Guardian, or in a bank safe deposit box.
Avoid: Storing them at home where they could be lost, damaged, or stolen.
Share Certified Copies: Your appointed representatives do not need the originals. Give them certified copies.
Who can certify? A Justice of the Peace (JP), lawyer, or notary public. Find a local JP at the NSW Justices of the Peace Register.
Tell Your Family: Let your close family know that you have made a plan. Tell your Executor where to find your original Will. Keep copies of these papers with your Financial and Legal Master List.
Keep a Record: Use the templates in this guide to keep a clear record of who you’ve appointed and where everything is stored. Tell your Executor where to find the original Will.
By taking these steps, you are making sure your voice will always be heard.
Next Steps Checklist
This Week:
[ ] Use the My Key People Roster template to list who you want for each role.
[ ] Call and ask them if they are willing to take on the responsibility.
[ ] Book an appointment with a solicitor.
This Month:
[ ] Meet with your solicitor to complete your Will, Enduring Power of Attorney, and Enduring Guardianship.
[ ] Get your documents properly signed and witnessed.
[ ] Store the original documents in a secure location.
[ ] Get certified copies made and give them to your representatives.
Ongoing:
[ ] Review your documents every 2-3 years or after a major life event (e.g., marriage, divorce, birth of a grandchild, or death of a representative).
[ ] Use the My Financial & Legal Master List template to keep your records up to date.
Disclaimer: This guide provides general information only and is not a substitute for professional advice. The information is provided "as is," without any guarantee of its accuracy or completeness.
Any action you take based on the contents of this guide is at your own risk. We are not liable for any loss or damage resulting from its use. Please consult a qualified professional to address your individual circumstances.