Will vs Enduring Power of Attorney

You may already have a Will or Enduring Powers of Attorney – or perhaps you have heard these terms before. But what do these documents do, and how do they differ?

In short: an Enduring Power of Attorney covers decisions made for you while you are alive but unable to decide for yourself. A Will covers what happens after you die. They do different jobs, and most people need both

What is a Will?

A Will records your wishes for what should happen after you die. It can include:

directions for your funeral;
the appointment of a guardian for your children; and
instructions for how your assets are to be dealt with.

What are Enduring Powers of Attorney

Enduring Powers of Attorney (EPAs) appoint another person to make decisions on your behalf if you become mentally incapable. There are two types:

Property EPA: covers decisions about your property and finances, including bank accounts and your home.
Personal Care and Welfare EPA: covers decisions about your medical treatment, healthcare, and personal wellbeing.

EPAs operate only during your lifetime. They cease to have effect when you die.

The key difference

In simple terms, EPAs allow your appointed attorneys to make decisions for you while you are alive, whereas a Will governs what happens after your death.

What Happens if you do not have EPAs?

This is the part people tend not to think about until it matters. If you lose mental capacity without EPAs in place, your family or friends may need to apply to the Family Court for authority to make decisions on your behalf.

That process can be expensive, stressful and time-consuming, and it comes at a point when your family is already dealing with a great deal. Court orders generally need to be reviewed every three years, and they come with financial thresholds that are relatively low and easily exceeded, particularly if a property needs to be sold. Adjusting those thresholds usually requires a further court application, and there are audit requirements and associated costs to factor in as well.

By contrast, EPAs usually continue until they are revoked or until you pass away, and can only be revoked while you still have mental capacity. The practical consequence is worth stating plainly: an EPA is a document you can only put in place while you are well enough to do so. Once capacity is lost, the option is gone.

Do you need both?

Yes. We recommend having both in place as a precaution. They do different things.

We recommend putting both a Will and EPAs in place as a precaution. No one can predict whether illness or injury will affect their ability to make decisions. EPAs are therefore like insurance: you may never need to rely on them, but they provide important protection if you lose mental capacity.

Frequently asked questions

Does my Will cover decisions made while I am alive?

No. A Will only takes effect on your death. Decisions made during your lifetime, if you are unable to make them yourself, are covered by Enduring Powers of Attorney.