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.
The three documents, plainly
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:
- Enduring Power of Attorney (financial). Lets a nominated person handle money, bills, property, banking, on the parent's behalf. "Enduring" means it survives loss of capacity, which is the whole point.
- Enduring Guardianship / Power of Attorney for Personal Matters (medical and lifestyle). Lets a nominated person make medical and lifestyle decisions (where they live, what care they accept, which surgery they consent to) once they can't make them themselves.
- Advance Care Directive (sometimes Advance Health Directive). Not about appointing someone. About writing down what your parent wants and doesn't want, in advance. CPR yes or no. Tube feeding yes or no. ICU admission, antibiotics for pneumonia in late dementia, transfer from a nursing home to hospital. The specifics.
Three different documents. Three different jobs. Most families have at most one of them in place when they need all three.
State variations, named
The names and forms differ by state. The meaning doesn't. Quick reference:
- NSW. Enduring Power of Attorney (financial). Enduring Guardianship (medical/lifestyle). Advance Care Directive.
- VIC. Enduring Power of Attorney (financial AND personal, combined under the Powers of Attorney Act 2014). Advance Care Directive.
- QLD. Enduring Power of Attorney (financial and personal, combined). Advance Health Directive.
- WA. Enduring Power of Attorney (financial only). Enduring Power of Guardianship (personal). Advance Health Directive.
- SA. Enduring Power of Attorney (financial). Advance Care Directive (combines guardianship and health).
- TAS. Enduring Power of Attorney (financial). Enduring Guardianship (personal). Advance Care Directive.
- ACT. Enduring Power of Attorney (covers financial and personal). Health Direction.
- NT. Advance Personal Plan (combines all three).
Look up the name your state uses, then the question is the same: are all three jobs covered, or are there gaps?
Mental capacity, the threshold
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:
- Understand that they're giving someone authority.
- Understand what that authority covers and when it kicks in.
- Understand that they can revoke it while they still have capacity.
- Make the choice freely, without coercion.
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.
Cost, named honestly
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.
- DIY through your state's online forms. $0 to $50. Many states (NSW, QLD, VIC) publish the forms free. They're valid documents. They require correct witnessing, usually by an authorised witness (JP, solicitor, pharmacist depending on state).
- Through a community legal centre or Seniors Rights Service. $0 to a low fee. Often free for pensioners. Run by the state or by community legal organisations. Slow (weeks to months) but solid.
- Through a general suburban solicitor. $300 to $800 for the full set. They do the paperwork, witness it, and store a copy. Usually the right move.
- Through a specialist elder law firm. $1,500 to $2,500 for the full set with bespoke advice. Worth it if there's complexity (blended families, business interests, contested capacity, overseas assets).
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.
Who to nominate, the actual question
Two roles to fill. The financial attorney and the guardian. Sometimes the same person, often not.
The financial attorney needs to be:
- Trustworthy with money. Boringly so.
- Reachable, contactable, willing to do bank paperwork.
- Likely to outlive the parent, ideally by twenty years.
- Not in financial trouble themselves. (Hard conversation, but: a sibling drowning in their own debt is the wrong attorney.)
The guardian needs to be:
- Local to the parent, or willing to travel fast.
- Willing to make hard medical calls under pressure.
- Aligned with the parent's values about care, not their own.
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 advance care directive, separately
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:
- Resuscitation: yes / no / specific circumstances.
- Artificial ventilation: yes / no / time-limited trial.
- Tube feeding (PEG): yes / no.
- Transfer to hospital from a nursing home for an acute event: yes / no / depends on prognosis.
- Antibiotics for a chest infection in advanced dementia: yes / no.
- Pain relief, even if it shortens life: almost always yes, but worth saying.
- Where they want to die, ideally: home, hospital, hospice, nursing home.
- Spiritual or religious requirements.
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.
Why before-the-crisis matters
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:
- Costs $0 in fees but $2,000 to $10,000 in legal costs if contested.
- Takes 2 to 6 months.
- Gives a stranger (or a family member, if uncontested) the authority that the EPOA would have given. Usually with conditions and reporting requirements.
- Becomes part of the public record.
- Is appealable, contestable, and slow.
A $500 solicitor visit at 75 saves a $5,000 tribunal at 82.
Three documents. State-specific. Done before the line moves.
Further watching
- 01Three documents, three jobs: financial EPOA, guardianship, advance care directive. Most families have at most one in place.
- 02Names and forms vary by state. The structure is the same. Look up your state's version, don't borrow another state's form.
- 03Suburban solicitor, $300-$800 for the full set, is the right level for most families. DIY if simple, specialist if complex.
- 04Don't name three siblings jointly to "be fair". The bank needs one signature fast. Name one primary, one backup.
- 05The advance care directive is the one most often skipped and the one that matters most in the last six months. The GP is the right witness.
The three documents that cover a parent losing capacity are: