Capacity, power of attorney, advance care directive
What to put in place while they still can. The Australian legal documents that prevent six months of grief later.
In progress6 min↓ 1,336 words
Loading…
§ Journey
What to put in place while they still can. The Australian legal documents that prevent six months of grief later.
The week Dad came home from hospital, the bank rang. Direct debit had bounced on his health insurance. He'd opened the letter, stared at it, put it back in the envelope, and forgotten about it. I tried to sort it for him over the phone. The bank, politely, said they couldn't talk to me. He was the account holder. I was nobody.
That was the day I realised the document I needed didn't exist yet, and the window to make it exist was closing.
This module is about three documents, all Australian, all set up before the crisis. Get them done while your parent has capacity. After capacity goes, the same outcome costs ten times the money and goes through a tribunal.
Australian law gives an older person three instruments to keep their wishes operational once they can't act for themselves. The names vary by state, but the structure is the same:
Three different documents. Three different jobs. Most families have at most one of them in place when they need all three.
The names and forms differ by state. The meaning doesn't. Quick reference:
Look up the name your state uses, then the question is the same: are all three jobs covered, or are there gaps?
The legal threshold for signing one of these documents is that the person understands, at the moment of signing, what they're doing and what it means. They have to be able to:
Capacity is not all-or-nothing. A person with mild cognitive impairment can usually still sign one of these. A person in moderate dementia often can't. The line is moving, on most parents, every six months. Which is why doing it before the line moves matters.
If there's any doubt, the document gets signed in the presence of a solicitor or a doctor who can attest to capacity at the moment of signing. That attestation, written, is what protects the document from being challenged later.
This is one of the few areas of legal work where the cost varies by an order of magnitude depending on how you do it.
Pick the one that matches the situation. Most middle-Australia families belong with the suburban solicitor. Don't DIY if there's any chance of family contest. Don't pay $2,500 if Dad has a unit and a pension.
Two roles to fill. The financial attorney and the guardian. Sometimes the same person, often not.
The financial attorney needs to be:
The guardian needs to be:
You can name two people jointly (must agree) or severally (either can act alone). Joint is safer when there's a risk of one going rogue. Several is faster in a crisis. Many families use joint for financial and several for medical. Decide which fits your family.
A note for siblings: name one as primary, one as backup. Don't try to "be fair" by naming three siblings jointly. The bank, the hospital, the nursing home will need one signature, fast, often. Three signatures is paralysis disguised as fairness.
The directive is the document most often skipped, and it's the one that matters most in the last six months of life.
What goes in it:
Talk it through with your parent in plain language. "If you had a stroke that left you not knowing me, and you got pneumonia, would you want antibiotics?" These are uncomfortable questions. They're more uncomfortable to answer for him in a corridor.
Your parent's GP can witness the directive in most states and is usually the right person to do it. They've had the medical conversations a hundred times. They know what to ask.
After capacity is gone, you can't sign these. What you can do is apply to your state's Civil and Administrative Tribunal (NCAT, VCAT, QCAT, etc.) for a guardianship and financial management order. That process:
A $500 solicitor visit at 75 saves a $5,000 tribunal at 82.
Three documents. State-specific. Done before the line moves.
A blunt field guide to the first month after the conversation. Sleep, paperwork, the kids, and the part nobody warns you about.
5 minHow to start the talk you've been rehearsing in the shower for six months. A practical guide to the words, the room, the aftermath.
4 minWhen she ends it and you didn't see it coming. The first 72 hours, the stories you'll tell yourself, and what to actually do.
4 minA self-interrogation guide for the man considering ending his marriage. Not advice. Questions. The hard ones, in order.
5 min