Wills, Enduring Powers of Attorney, Guardianship Nominations and Living Wills in an Ageing Society

by Paul Evans and Richard d'Apice AM
10 July 2012

The importance of estate planning in an ageing society.

A recent report by The Alzheimer's Association on the impact of dementia on society makes sobering reading. The report shows that by 2050 approximately 303,500 people in NSW will have the condition (at present approximately 95,000 people in NSW have it). Another concerning statistic revealed by the report is that only 55% of Australian have a Will, with an even smaller proportion of Australians having recorded their wishes regarding the management of their financial and health and lifestyle affairs, if they lack capacity to manage them themselves.

It's important to get your affairs in order before it's too late by completing the following legally binding documents:

A Will, which takes effect only on your death, empowers you to:

  • choose appropriate executors to manage your wealth on your death;
  • make gifts to friends and charities;
  • distribute your assets as you choose;
  • establish trusts appropriate for asset protection and tax purposes.

If you don't have a Will you will die intestate and your assets will be distributed in accordance with the Government Intestacy Rules. Please note that each state and territory in Australia has different rules.

The Alzheimer's Association report echoes the US 2009 Census which showed that within 10 years and for the first time in history, elderly people will outnumber children under 5 across the Globe.

An aging population means people can expect longer periods of poor health and declining mental capacity. Because of this it is crucial to appoint substitute decision makers by completing:

  • An Enduring Power of Attorney covering your financial and property affairs; and
  • A Guardianship Nomination covering lifestyle and health issues
  • A Living Will dealing with end of life decisions permits you to express your wishes about medical treatment if you don't have capacity and can't speak for yourself.

In each case the document should appoint a trusted family member, friend or professional person chosen by you to make decisions for you if you can't do so yourself.

If you don't complete these documents the Guardianship Tribunal will step in to decide who will look after you.