Invalid wills could remove aged care residents’ autonomy

Key points:

• Only two in five residents in New South Wales have a valid will document, despite the fact that not making a will may negatively impact you later in life
• Will and power of attorney requirements vary between states and territories, so keeping updated legal documents is essential if moving interstate for aged care
• NSW Trustee and Guardian Chief Executive Officer Brian Woods highlighted that there’s ‘no time like the present to get organised’ in regards to updating your will

Three in five New South Wales residents ‘do not have a legal will document in place,’ despite the importance of making a will for decisions regarding aged care later in life.

Having a will that is not legally recognised can impact who makes the decisions regarding your aged care now and in the future. 

Understanding this legal information is important because at some point you may become unable to make decisions regarding your finances or care because of physical difficulties, e.g. poor vision for reading documents, or cognitive changes, e.g. onset of dementia. 

A will is a legal document that formalises your wishes about what happens to your assets when you die. This may include who receives what assets, if you’d like to donate to charities and what you’d like to happen at your funeral.

Although every Australian should have legal will documents, giving someone else power of attorney or enduring guardianship may be required in some cases. 

The role of a person who has power of attorney varies between states and territories. For example, in New South Wales, they can only make financial decisions, with other decisions requiring an enduring guardianship classification. Conversely, power of attorney holders in Queensland can make financial, health and personal decisions.

People who are given general power of attorney have a different role than people with enduring power of attorney. Some people may appoint a power of attorney for a specific amount of time, which either ends when they die or they become legally incapacitated, as per the South Australian Government. 

Giving someone enduring power of attorney means they only begin making decisions for you after you become legally incapacitated. This decision must be made while you are still mentally able to understand the documentation and agreements.

However, as documents such as wills and legislation vary between states, visit your state or territory’s Public Trustees office website for more information about will execution and power of attorney privileges:

• NSW Trustee and Guardian;
• Queensland Public Trustee;
• Public Trustee SA;
• Victoria State Trustees;
• Public Trustee of NT;
• Public Trustees TAS;
• Public Trustee WA; and
• ACT Public Trustee and Guardian.

When looking for aged care homes, older Australians may find suitable places at interstate residential care facilities, but this may impact the validity of their will and who can make decisions regarding care.

Choosing an aged care provider or aged care home that suits your needs is ideal, even if it is in another state. In these situations, ensuring the validity of your will and related legal documents should be prioritised.

NSW Trustee and Guardian Senior Solicitor Natalie Darcy highlighted the importance of understanding how the validity of your will can change depending on your location.

“The laws of intestacy state the order in which relatives become beneficiaries which might not be what you would wish,” she said.

“Dying intestate can create significant delays and increase the chance of disputes for your loved ones, often at a time of grieving.”

NSW Trustee and Guardian Chief Executive Officer Brian Woods commented on the importance of Australians making wills a priority before it’s too late.

“We’ve been writing wills for over 100 years and every day we see the impact of those who have died without a will and power of attorney or enduring guardian documents in place. There is no time like the present to get organised,” he said.

Legal documents, such as wills, provide clarification regarding your estates and can also influence your future care and assets.

Planning ahead regarding will documentation is essential — if you do not make a will and do not have any relatives, or they cannot be located, all of your estate will be given to the relevant state government.

The Aged Care Guide contains advice about why you should review your will regularly and if you need a will.

The NSW Trustee and Guardian offer will packages to help people in New South Wales create their wills, ensuring they are valid. State-specific will packages are available through relevant state and territory public trustee offices.

Will packages vary in cost, however, eligible Australians are not required to pay for their NSW Trustee and Guardian will or estate documents. This includes people with a full Age Pension, people receiving a Department of Veterans’ Affairs Pension or Disability Support Pension and would otherwise be eligible for the age pension. 

However, using public trustee services to create wills is not the only option for Australians looking for cheaper alternatives. 

The Salvation Army runs Community Wills Days around the country to help Australians access cheaper will appointments and these must be booked in advance. A standard Salvos will appointment costs $100 dollars for a single person and $150 dollars for a couple, although these prices will increase in January 2025. The costs of these services are donated to the Salvation Army.

Alternatively, will kits and online will packages are cheaper options and can be completed in your own time. However, caution should be taken to ensure that the wills are completed correctly — getting these checked by a solicitor or public trustee is advised. 

Financial aspects to consider when preparing your will may include super, family trusts and testamentary trusts.

Call the Aged Care Guide support line on 1300 186 688 to be referred to a financial planner for specialist advice.

The NSW Trustee and Guardian’s recently announced six-month campaign will consist of radio and digital advertising as Australians are urged to check their legal documents to ensure they are still valid. 

Have you prepared a legal will document valid in your current state or territory?

Let the team at Talking Aged Care know on social media. 

For more information and news in the aged care industry, subscribe to our free newsletter. 

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