Wills & Estate (Succession) Planning

In New South Wales there are three important courses of action which individuals should contemplate when considering how their affairs are to be dealt with in the event that they become of unsound mind, become physically incapable of dealing with their affairs or die.

Succession planning is a process which requires careful consideration of the entirety of a person’s legal and financial circumstances and taking into account the personal circumstances of beneficiaries. We look at your concerns about your beneficiaries – for example issues around health, debt, exposure to undue influence of third parties, asset protection.

We also look at how you hold your assets for example, assets owned personally, owned by companies or held by trusts, taxation requirements, asset protection, complex family situations and a range of other legal and financial matters.

General info

Estate Plan

A balanced estate plan is not only limited to the preparation of a Will to ensure assets are managed and distributed in accordance with your wishes. It involves much more. A well thought out plan should include consideration of a number of factors, including:

  • A Will.
  • Shareholder and partnership agreements which address current management and ownership issues, and the future succession of management and ownership.
  • Integrated company, trust, and superannuation structures.
  • The use of devices to avoid assets passing through your estate such as family trusts, insurance, joint tenancy and superannuation.
  • An Enduring Power of Attorney (personal and corporate).
  • An Enduring Guardian incorporate and Advanced Health Care Directive.
  • Advice from your accountant or financial planner about tax planning which addresses income tax, capital gains tax and stamp duty implications of transferring assets and/or managing assets upon death or other keys events.


A few of the more common examples are the possibility that you or one of your beneficiaries may be affected by:

  • The desire to leave a close relative out of your will.
  • Mental or physical incapacity of you or a beneficiary.
  • A beneficiary’s exposure to issues of undue influence and bankruptcy.
  • Bankruptcy or business failure, or the bankruptcy or business failure of a beneficiary or a spouse of a beneficiary.
  • Divorce – yours, or that of a beneficiary.
  • A dispute over the Will.
  • The use of a testamentary trust in your Will to enable maximum flexibility so that a beneficiary can enjoy the maximum benefit and protection from your estate.
  • The use of insurance coverage as an asset in your plan.
  • Balancing the rights of different categories of beneficiaries to receive income and/or capital and the right to control income and/or capital.
  • Referral to experts who can tailor the most suitable financial plan.


Not all of these will necessarily occur in every case, but we’ve got you covered.

Ideally an estate plan should be developed, coordinated and linked with a financial plan which includes a retirement plan, investment and wealth accumulation strategies.

What happens when you leave debt in your Will?

While it can be hard to think about the inevitable (death), it’s crucial that you properly plan your estate to save any hassle for your loved ones. After you die, the executor has several responsibilities they’ll need to fulfil (hyperlink to role of executor). One of which is paying down any debt in your will that’s left behind.

Once the executor receives the Grant of Probate, the assets and liabilities of the Will become the assets and liabilities of the estate and are passed to the named executor to handle. If there is no named executor, then an Administrator would be responsible.

Before the executor can distribute any assets to your listed beneficiaries, they must pay down any debts left behind using whatever funds are available in the estate. They are entitled to use both real and personal property to satisfy these and any expenses, including funeral costs.

Secured Debt vs Unsecured Debt

There are two types of debt that you can leave behind in your will: Secured and Unsecured. These are dealt with differently, and it’s essential to understand the significant differences between the two.

Secured Debt refers to a debt that is fixed to one more asset. An example is a mortgage that’s secured against your property. These must be dealt with by the executor before the unsecured debts.

Unsecured Debt refers to debts held without collateral. The executor can typically pay these off from the money left in the estate. These can include credit cards, bank loans and bonds.

What if there are not enough funds to pay down the debt?

When your estate is solvent, this means that there are assets left over after the executor pays down the debt in your will. If the estate is insolvent, whatever debt is remaining exceeds the value of the assets.

If there’s not enough money to pay down the debt, the executor may need to sell property, and if there are not enough assets in the estate to pay it all down, then creditors will have to be contacted to request that they be ‘written off’.

From here, the creditor may apply for bankruptcy if they confirm that the estate is insolvent.

What assets can’t pay down debt in your Will?

Unless your Will states otherwise, there are a few things that the executor can’t use to pay down your debts. These include:

  • Superannuation Death Benefits
  • Life Insurance Benefits


It’s also important to note that if you’re a trustee or a joint tenant to a bank account or property, these will not become part of your estate. However, if you own any shares in a company/unit in a trust, these will become part of your estate.

Do my family members inherit my debt?

Generally speaking, your family members can’t be forced to pay down any debts you leave behind. But there are a few occasions where a family member could be liable, so it’s important to prepare for the following circumstances:

  • You secured debt against property owned by a family member
  • You and the family member of the asset in question are co-borrowers
  • A family member acted as a guarantor to your debt


However, if a beneficiary is given a property with a mortgage, they can keep the asset and take on the mortgage repayments. Doing this would be by choice, and the liability would transfer to them.

How to Plan

To avoid any confusion and unwanted liability for your beneficiaries, speak to us and get professional advice if you are unsure about any debts you have at the moment and to work towards getting them solved.

Will = Your Estate

A Will can range from a simple document such as those usually known as “mum and dad” Wills to quite complex documents involving testamentary trusts, life estates and other structures designed to address special circumstances, taxation issues and asset protection.

A Will is a legal document which lets you decide how your Estate (the things you own at death) should be distributed to your loved ones.

Why should I make a Will?

  • Well, it’s too late when you’re dead! You will also need to have capacity to give instructions for your Will.
  • No matter how much you own, a Will is the only way you can spare your loved ones from not knowing how you wanted your Estate to be distributed after you die.


What happens if I die without a Will?

Dying without a Will is also called “dying intestate”. Trust us; you do not want to die intestate as this can place enormous stress on your loved ones as they may be forced to apply to the Supreme Court to manage your Estate in the midst of grieving. There may be other distant relatives who think they have a better claim to manage your estate and there could be legal argument over who is the best person. This could cost your estate a lot of money!

Who should I appoint as my Executor / Trustee?

  • An Executor / Trustee of a Will carries out your directions after you die. If they are attempting to do this while they are grieving, it can be very hard on them.
  • By making a Will and appointing an Executor / Trustee who you know has the skills (and time) to manage your Estate, you can reduce the burden on your loved ones during a difficult time.


How do I make a valid Will?

  • A Will that is not professionally drafted can create a lot of stress for your surviving loved ones if a Court has to determine what your Will means.
  • We can help ensure your Will means what you want it to mean and is legally binding.


By acting now in good times, you can help your family in hard times.

Role of Executor

The role of executor comes with several, often complicated responsibilities. Anyone appointed as an executor in NSW will have the following responsibilities when administering your Will:

Locating the Will

The first step an executor needs to take is to locate the Will. In most cases, the executor will have been informed of the Will’s location before the deceased’s passing.

Organising Funeral Arrangements

An executor in NSW will be required to arrange the funeral of the deceased according to the wishes laid out in the Will.

This should be carried out as soon as possible after death.

It is important for the executor to follow the deceased’s wishes as carefully as possible to avoid any legal consequences.

For example, it is illegal in NSW to cremate somebody against their wishes.

When organising the funeral, the executor should consider discussing the arrangements with the deceased’s family, especially if there are religious considerations.

Obtaining Probate – See Grant of Probate above.

Protecting the Estate

It is the role of the executor to protect the assets of the estate.

This may involve storing valuables, keeping surplus funds invested, insuring all property and protecting any business interests.

The executor must also make sure the assets of the estate are not diminished due to their action or inaction.

This might occur if the executor fails to administer the estate within the prescribed time limits and incurs unnecessary legal costs.

In situations such as this, the executor may be held personally liable for any reduction in the estate assets.

Seeking the advice of an experienced lawyer will help an executor ensure this doesn’t occur.

Determining Assets and Debts

The executor will need to confirm the assets and debts held by the estate at the time of the Will-maker’s death.

This is achieved by contacting financial institutions, relevant companies, and performing land and property searches.

The executor will prepare a statement of assets and liabilities covering:

  • Personal effects
  • Taxation details
  • Cash and other securities
  • Business Interests
  • Real Estate
  • Debts Owing
  • Debts Due


Defending the Estate

In the case where someone wants to challenge or contest the Will, it is the executor’s job to defend the estate. Any executor in this position should seriously consider securing the services of a lawyer to guide them through the legal process related to a contest to a Will.

Distributing the Estate

Once the assets of the estate have been established, and all debts paid, the executor will then distribute the estate to the beneficiaries.

This generally involves transferring cash and assets to the named beneficiaries.

Unless there are extenuating circumstances, an executor must administer the estate within 12 months of the Will-maker’s death.

Keeping Proper Records and Receipts

Executors are expected to keep proper records and receipts of all assets transferred in the distribution of an estate.

Although the role of executor is generally unpaid, executors are entitled to reimbursement for any out of pocket expenses related to the administration of the Will.

Keeping proper financial records and saving receipts will make sure the executor is repaid from the estate for any reasonable admin costs.

Contemporary Estate Planning – Why Wills should contain Testamentary Trusts

If someone close to you has recently died and did not leave a Will, you may need to apply for a Letter of Administration. The Supreme Court issues this document, giving you the legal authority to administer the deceased person’s estate.

What is a letter of administration?

A Letter of Administration is a Grant issued by the Supreme Court that gives a person authority over a deceased’s estate.

When are letters of administration in NSW required?

Applying for Letters of Administration in NSW is necessary if the deceased didn’t leave a Will. In this case, the Court usually grants Letters of Administration to the person who inherits most under intestacy rules (when someone dies without a Will).

As Letters of Administration give you authority over their estate, you must apply as soon as possible after the person’s death. They may also be required when there is a Will, and all executors in the Will either choose not to fulfil the role’s responsibilities or are unable to act.

Who can apply for a Letter of Administration in NSW?

The Probate and Administration Act outlines the list of eligible people to apply for a Letter of Administration in NSW. Typically, the Court will issue the Grant to an adult entitled to inherit a portion or entire estate.

If there is more than one person who is eligible to apply, they can jointly apply, or one person can apply with endorsement through a written affidavit by the other beneficiaries. If the beneficiaries can’t agree on who should apply, the Court will usually grant the closest living relative, such as a spouse or children.

Things to consider before applying for a Letter of Administration

Before you can apply for Letters of Administration NSW, you’ll need to check that there isn’t already a Will. If the deceased left a valid Will and appointed an executor, they are responsible for administering their estate.

If there is no Will, Letters of Administration may go to the person who inherits most under intestacy rules. However, there are some other things you’ll need to consider before applying for Letters of Administration NSW:

  • You must be over 18 years old and act competently
  • You can’t have a criminal conviction
  • You must not be bankrupt or insolvent


Castrikum Adams Legal offers services enabling you to obtain Letters of Administration at a fixed cost, quickly and hassle free to ensure that you meet your obligations as an administrator in a timely manner.

We can draft all the required Court papers and meet with you to sign the Application. Following this meeting, we lodge the Application with the Supreme Court of New South Wales and notify you once the Grant of a Letter of Administration has returned. Finally, upon receiving the Grant of a Letter of Administration we organise for a further notice to be published via the online portal in order to protect you from any claims of creditors.

It is important to understand the process. The Letters of Administration Application form contains strict instructions that must be adhered to, or the Court could reject your submission.

  • Ensure there is no valid Will
  • Obtain a death certificate from the Registry of Births, Deaths and Marriages
  • Determine who is entitled and should apply under the rules of intestacy
  • Submit a Notice of intention on the NSW online registry
  • Complete the necessary forms
  • File your application with the Supreme Court of NSW
  • Receive the Grant of Letters of Administration


What is the fee to apply for a letter of administration in NSW?

Fees for obtaining the Grant of a Letter of Administration are calculated in accordance with the Supreme Court scale of fees based on the gross value of the estate. To see the scale of fees, click here:


How long does the process take?

After the Application is submitted it can take anywhere from 4-8 weeks, depending on how busy the Supreme Court of NSW is, before the Grant is issued.

To see the current processing times for Applications, click here:


The whole process of applying for Letters of Administration in NSW can take anywhere from a few weeks to several months. You must apply within six months of the death.

The time it takes to receive the grant will depend on how complex the deceased’s estate is and how many beneficiaries are involved.

What happens after obtaining a letter of administration?

This process is very similar to the process for a Grant of Probate (hyperlink to our Grant of Probate)

Are letters of administration in NSW always granted?

The Court doesn’t always grant Letters of administration. If this happens, you can ask for reasons from the Court and may reapply if you can address the issues raised. Sometimes the Court might decide that another person entitled to administer the estate.

Intestacy – Who is entitled to the assets of the deceased if there is no Will?

A testamentary trust is a trust which arises upon the death of the testator, and which is specified in their Will. A Will can contain more than one testamentary trust, and each trust can address all of the estate assets, or specified assets of the estate.

Why use a Testamentary Trust?

  • A standard Will offers little assistance to a beneficiary of an inheritance in relation to issues of tax efficiency and asset protection.
  • Testamentary trusts are widely recommended for use in modern Wills because of the taxation and asset protection advantages that they offer when compared to a ‘standard’ Will.
  • Establishing testamentary trusts in your Will provides your beneficiaries with maximum flexibility in dealing with their inheritance, including significant tax concessions for beneficiaries under 18 and other useful tax efficient strategies. It is important that the terms of the testamentary trust are sufficiently wide to offer the beneficiary as many options as possible so as to provide freedom and flexibility.


What if a Testamentary Trust turns out not to be useful to my beneficiaries?

Your Will can be drafted so that the primary beneficiary has the power to decide to:

  • use the trust for all, part or none of the beneficiary’s inheritance; or
  • wind up the trust at any time; or
  • pass the control of the trust in accordance with the Will of the primary beneficiary.


A testamentary trust can live for up to 80 years from your death. This means that a testamentary trust can benefit generations of your family by provide flexibility, asset protection and taxation advantages.

What does a Testamentary Trust “look like?”

Instead of leaving an inheritance directly to a nominated beneficiary, you leave the inheritance to your nominated beneficiary as trustee of a discretionary trust.

The following is a typical diagram of what a testamentary trust looks like: 

How will my beneficiaries benefit from a Testamentary Trust?

Your beneficiaries can potentially derive the following benefits:

  • Potential for significant income tax savings for beneficiaries.
    • A testamentary trust can allow for the splitting of the income among the potential discretionary beneficiaries of the trust.
  • The trustee of the testamentary trust (normally the primary beneficiary) has complete discretion to determine who receives the income of the trust. Tax is paid on the income of the trust at the marginal tax rate of the beneficiaries who receive it. By selecting beneficiaries on low marginal tax rates, the trustee can minimise the taxation liability of the trust. The trustee can choose to distribute income to minor beneficiaries of the trust with each beneficiary being able to receive over the threshold of income tax-free.
  • The trustee can also distribute income from the trust to charitable and religious beneficiaries. As many such beneficiaries have tax deductibility status or are tax exempt, no tax is paid on allocations to such organisations.
  • Beneficiaries under 18 years of age attract special tax concessions
  • Normally penalty rates of tax apply to income derived from trusts which is paid to children under the age of 18. Relevant legislation allows children under age 18 who receive income from a testamentary trust to be treated as adults for tax purposes. This could mean significant tax savings for beneficiaries who can “split income” with their minor children.
  • The trustee of a testamentary trust can also distribute income from the trust to charitable and religious beneficiaries.
  • Potential for significant capital gains tax savings for beneficiaries
  • A testamentary trust can also provide the opportunity for your beneficiaries to minimise Capital Gains Tax which arises from the sale of your assets.
  • As with the income of the trust, the trustee can select which of the beneficiaries of the testamentary trust should take the capital gain. By choosing to distribute the capital gain to a beneficiary on a low or nil income, the capital gains tax liability can be significantly reduced.
  • Holding the assets of an estate within a trust offers the beneficiaries an opportunity to defer the need for the sale of assets (and therefore capital gains tax) until later when more numerous beneficiaries come into existence. Tax deferred is tax saved.
  • Protection of beneficiary’s inheritance
    • A testamentary trust may also provide protection for a beneficiary who is experiencing family law difficulties, other type of court proceedings or bankruptcy issues.
  • Assets that pass to a testamentary trust from an estate are held for the nominated primary beneficiary until the trustee elects to distribute such assets. Because the assets are not owned personally by the beneficiary, they do not form part of the beneficiary’s personal estate. Therefore, a creditor or other person claiming against the beneficiary, would be unlikely to obtain the assets held in the trust.


By incorporating Testamentary Trusts in your Will your beneficiaries will be able to access numerous options which will help to protect their inheritance and reduce the risk of loss through family law dispute or bankruptcy as well as providing strategies which can help them reduce the incidence of income and Capital Gains Taxes.

10 Things You Should Know About Wills

  • You can only leave assets that you own.
  • Couples often own their home as “joint tenants”. If you own assets as “joint tenants” those assets automatically passes to the survivor upon death (known as “right of survivorship”).
  • If you own the family home as “tenants‑in‑common” you have the right to leave your share of the property in your Will.
  • You must include a “residual clause” to specify who is to get the remaining assets.
  • Leaving “notes” on specific articles in the house may cause problems if the “notes” are contrary to the Will, or get lost etc – please talk to us about a “gift list”
  • Beneficiaries cannot witness Wills. If a gift is made under a Will to somebody who witnesses the Will or to that person’s spouse that gift is, except in certain specified circumstances, void.
  • If you leave a gift to your child who dies before you leaving children who are living at the time of your death, the gift does not lapse. The trap however is that it does not necessarily go to the children of your deceased child. It goes in accordance with the law which applies to that person’s estate unless this contingency is dealt with in your Will. The failure to address this contingency in your Will may be that part of your Estate ends up in the hands of a total stranger.
  • The Will needs to be in writing, signed by the testator and appropriately witnessed by two disinterested persons.
  • Once you have made your Will you might want to discuss aspects of it with your executors and possibly family.
  • Assets can change in value between making the Will and your death.
  • Marriage revokes an existing Will, unless made in contemplation of marriage.
  • Divorce does not revoke a Will but does substantially affect it.
  • Like it or not ‑ if you leave one of your children out of your will, you are leaving the door wide open for it to be contested.
  • Certain people have the right to make a claim upon your estate. This includes your spouse, de facto, children and, in certain circumstances, a former spouse or partner and your grandchildren. 
  • If you are determined to exclude certain people from your Will, it can create serious problems. This should be discussed carefully with your solicitor. 
  • The costs of defending any challenge to the Will often come out of the Estate.
  • There is no way to make sure your Will is not contested but, there are things you can do to minimise the risk of a challenge.

The issues

  • Where there are blended families you need to consider making provision for the children of a first marriage/relationship as well as children from a second marriage/relationship and your current spouse/partner. This will take some planning.
  • Ensure you nominate a guardian for any minor children in the event that both parents die.
  • Another area that should be covered is what would happen if you were unable to look after your affairs yourself ‑ for example if you suffered dementia later in life.
  • An Enduring Power of Attorney (financial) and an Appointment of Enduring Guardian (health and lifestyle) allows someone else to manage your affairs if you can’t.
  • The solutions
  • There are only so many assets to go around ‑ especially in blended families. You don’t always want your assets to be sold off, and the proceeds divided.
  • Life insurance may be the answer – it can provide the cash asset for estate “equalisation” between “families”.
  • Using more sophisticated Testamentary Trust Wills to divide assets fairly can be used, but they need to be discussed with your solicitor.
  • Another alternative is a Testamentary Trust. This is a trust that is set up in your will and holds your assets under the control of a trustee. Your loved ones can be made beneficiaries of the trust, which means they benefit from the assets without having outright ownership of them.
  • A Testamentary Trust can provide significant benefits to children or grandchildren because usually if money or assets are left to children in a “simple” Will the income on those investments is taxed at a penalty rate that is higher than the usual tax scales. But with a Testamentary Trust you can distribute the income, and it is taxed at the usual tax scales.
  • The greatest advantage of a Testamentary Trust is income splitting.
  • A Testamentary Trust can provide for the ongoing care and maintenance of a child.
  • Maybe you have married later in life and have sizable assets and both you and your new partner have grown children.
  • While you don’t want to leave you partner in the lurch on your death, you do want to ensure that your assets eventually go to your children and grandchildren, rather to your partner’s. In this case a lifetime interest may be recommended.
  • It is especially useful in second marriages where the couple may have bought the family home as tenants in common, rather than as joint tenants.
  • On your death your half of the house will pass to you beneficiaries. You will want to protect your second spouse as well as protect your children; so you will leave you spouse a life interest in the property.
  • When to second spouse dies, the property is sold and your half goes to your children and your spouse’s half goes to his or her children.
  • The executors are the people appointed by you to manage and administer your estate and give effect to your Will. You should appoint executors who are honest, impartial, trustworthy and likely to have the respect of the beneficiaries.
  • If you are appointing two executors, make sure you appoint two people who get along.
  • Once you have appointed your executors it is important to make sure that they understand what they are taking on, and they are prepared to perform the role.
  • The executors are traditionally assisted in performing their role by the estate solicitors.
  • In the event that both you and the other parent pass away while your child/children are under the age of 18, the law requires that someone is appointed to look after them. This person is known as a guardian. They are responsible for the welfare and upbringing of your minor child/children (under 18 years).
  • Choosing your child/children legal guardian is a very important decision to make as you will need to be comfortable with who you choose to care for your child/children.
  • It is important to discuss your wishes with your child/childrens guardian. Topics that should be discussed are:
    • Living arrangements
    • Education
    • Access to financial arrangements and support
    • Health, religious and welfare decisions.
  • You can choose more than 1 guardian to care for your child/children eg grandparents, sister and brother in law.
  • You may also wish to choose an alternative guardian in the event that your first appointed guardians are unable or unwilling to take on the role.
  • Should you wish to appoint a guardian that is not the other parent, then the legal guardian that you appoint will act JOINTLY with that parent. If the surviving parent objects to this arrangement, then your legally appointed guardian may apply to the Court.
  • It is not recommended that you use a do-it-yourself Will kit, but if you do then make a point of getting that Will checked by a solicitor to ensure that it achieves what you want.
  • For the average person, a Will kit is not a good idea. They are standardised and try to achieve the “one size fits all” approach, which does not always work.
  • It is not a good idea to draw up your own Will. You may think your instructions are clear, but often they can be ambiguous or ineffective, leading to lengthy and expensive court cases.
  • You need professional help to make sure you get the Will right.
  • Probably the most compelling argument against the “do-it-yourself” Will option can be summed up in three words: “capital gains tax”.
  • Superannuation can be an effective part of tax planning.
  • Usually, superannuation is not covered by your Will.
  • The beneficiary named in your Will is not necessarily the person who will receive the benefits from your super fund. This can be covered if the superannuation fund allows you to make a binding nomination. 
  • It is important to keep your super fund nomination up to date.
  • The trustees of a superannuation fund may have the discretion to direct your super benefits to whichever family member they choose, depending on the nomination you have made.
  • Self-managed superannuation funds (SMSF) can provide its members (your family) a tax effective way to leave your assets to them.
  • Assets of the SMSF can pass to members of the fund without their value being realised, and so without capital gains tax being triggered.
  • As mentioned, a testamentary trust can be a tax-effective way to pass assets on your beneficiaries.
  • Not keeping your Will up to date
  • Writing an informal Will
  • Not providing for dependants
  • Not nominating guardians (for children under 18 years)
  • Leaving someone out
  • Using beneficiaries as witnesses
  • Being ambiguous
  • Not telling people where your Will is located
  • Not specifying debts to be paid
  • Not taking tax into account
  • Bequeathing assets not owned by you (such as assets in a trust)

Power of Attorney – Your Finances

A Power of Attorney is an important legal document. It appoints a person you trust to manage your financial and legal affairs while you are incapacitated. This person is known as your Attorney.

A Power of Attorney ceases to have effect if the person giving the Power of Attorney loses their mental capacity unless the Power of Attorney expressly states it will continue to be effective notwithstanding loss of capacity through unsoundness of mind. Such a Power of Attorney must be endorsed with a certificate by a prescribed person (a solicitor, barrister, clerk of the Local Court) explaining the effect of the instrument to the person before it was executed. Without the certificate, the Power of Attorney ceases to be effective when the person giving the Power of Attorney becomes incapacitated through senility otherwise.

Powers of Attorney can be general (where the appointed person can do anything the appointer can lawfully do) or they can be restricted. For example, the document may say that the attorney can do all things except transfer the title of any real estate.

Why should I appoint an Attorney?

Appointing an Attorney protects your family by ensuring your financial affairs can still be dealt with even if you can’t look after them yourself. It also prevents your family from having to take costly Court action (similar to dying intestate) to manage your affairs if you can’t.

Who should I appoint as my Attorney?

Your Attorney should be someone you trust to act solely in your best interests. They also need the skills to manage your affairs and understand your wishes.

What do I need to make a valid Power of Attorney?

The most important things are having capacity and getting professional help. You cannot appoint an Attorney without capacity, which is why you need to act during the good times.

Appointment of Enduring Guardian – Your Health, Medical & Life Style

Your Enduring Guardian is someone you trust to make medical and lifestyle decisions on your behalf if you no longer have the capacity to do so. Again, it also prevents your family from having to take costly Court action to manage your affairs if you can’t.

It is highly recommended that your Enduring Guardian contains an Advanced Health Care Directive (AHCD) which means you do not have to see a GP as well.

Unlike an Enduring Guardian, an AHCD (on its own) is NOT a legal document.

The Enduring Guardianship needs to be witnessed by a legal practitioner as does the acceptance of that Appointment. The Appointment may be reviewed by the Guardianship Board or by the Supreme Court and is revoked on marriage of the Appointor.

Why should I appoint as an Enduring Guardian?

Appointing an Enduring Guardian protects your family by ensuring they are not asked to make what can be difficult and stressful decisions about your medical treatment without knowing what your wishes are.

Who should I appoint as my Enduring Guardian?

Your Enduring Guardian should be someone you trust to carry out your health and lifestyle wishes. This means the best Enduring Guardian won’t always be the person closest to you, if you want to spare that person from making sometimes difficult decisions for you.

What do I need to make a valid Enduring Guardian appointment?

You need the capacity to give instructions to your solicitor, which is why you have to act during the good times.