• Any property that the person possessed or was entitled to at the time of their death can be disposed of by will.
• A person cannot use their will to dispose any property of which they are a trustee at the time of their death.

• There are several requirements that must be met for a valid will.
• The will must be in writing and signed by the testator. If the testator is unable to sign the will then another person must sign it in the presence and at the direction of the testator. For example if the testator suffers from a physical impairment that renders them unable to sign another person may sign on their behalf.
• The testator must sign the will or acknowledge their signature or a signature made on their behalf before at least 2 witnesses.   
• The will must also be signed by at least 2 people who are not beneficiaries or named as executors in the will. The testator must be present when each witness signs the will but it is not necessary for each witness to be present when the other signs.
• You can use our Fixed-Fee Quote service to call for tenders from experienced lawyers who may be able to assist you with preparing and witnessing a valid will.

• Under the law you are free to dispose of your property to whoever you want under your will.
• However an eligible person can challenge your will if you have failed to make adequate provision for their proper maintenance, education or advancement in life.
• An eligible person is a person who is:
  • your wife or husband at the time of your death;
  • your de facto partner at the time of your death;
  • your child including a step-child or adopted child;
  • your former wife or husband if they have remained dependant on you; or
  • any other person who was wholly or partly dependant on you.
• See our Family Provision Law Overview Guide for more information.

• An enduring guardianship is a formal legal document allowing another person to make decisions about your accommodation, health, medical and dental treatment and other personal services.
• An enduring guardian cannot make decisions relating to your financial matters.

• While an enduring guardian holds many decision-making powers they cannot make or alter your will. 

• Under section 6E of the Guardianship At 1987 (NSW) a person validly appointed as an enduring guardian can:
  • decide the place where you live;
  • decide the types of health care you receive;
  • decide and approve any personal services you may require; and
  • consent to any medical or dental treatment that is required.

• Intestacy occurs when a person who owns an estate dies without leaving a valid will.
• An estate includes all real and personal property remaining after payment of debts and funeral expenses.

• If you died without first making a valid will you will be referred to as an 'intestate'.
• This is opposed to a person who dies with a valid will who is referred to as a 'testator'.

• A spouse is defined as a person who:
  • was married to the deceased person immediately before their death; or
  • was in a domestic partnership with them immediately before their death.
• A domestic partnership is defined under the law as either a:
  • registered relationship within the meaning of the Relationships Register Act 2010; or
  • a de facto relationship that has been in existence for a continuous period of 2 years or resulted in the birth of a child.

• A reference to ‘issue’ refers to your children and includes your lineal descendants such as your natural and adopted children and their children and so on.
• Issue does not include stepchildren who are only related to you through marriage.

• Under a power of attorney you formally give permission for another person or a trustee organisation to legally manage your assets and financial affairs if you are unable to do so.
• A power of attorney can only deal with property and financial matters.
• There are two types of power of attorney. These are ordinary and enduring power of attorney.
• With an ordinary power of attorney you give the power to someone for a limited period of time such as if you are overseas on a long-term holiday. An ordinary power of attorney ceases if you lack capacity to act for yourself.
• An enduring power is for an extended and indefinite period of time. An enduring power of attorney continues if you lack capacity. This means your enduring power of attorney will still be able to manage your affairs if you start to suffer from dementia or are otherwise incapacitated.
• If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.

• Aged care facilities are government funded and sometimes subsided care facilities set up to assist older persons requiring personal and nursing care to live comfortably.
• Retirement villages are a lifestyle choice available for older persons after retirement. While retirement villages have communal facilities they do not offer nursing or personal care to the residents.

• Whether a person has capacity depends on the particular task that is being required of them. Some people might have capacity to do one thing but not another.
• To assess capacity in a given scenario the following issues will be considered:
  • whether the person understands the facts involved in the decision making process;
  • whether the person understands the consequences of their actions and how it may affect them; and

whether the person in able to communicate clearly their decision

• In Australia there are laws that protect an older person from being abused either physically, psychologically, emotionally or sexually.
• A single act or failure to act can constitute elder abuse as can an ongoing pattern of behaviour.
• The main indicia of elder abuse are:
  • a relationship giving rise to an expectation of trust; and
  • the causing of harm or distress to an older person.
• This can include intentional or unintentional neglect.
• You can get information specific to your state or territory here:
  • Australian Capital Territory: Older Persons Abuse Prevention Referral and Information Line (APRIL) – 02 6205 3535
  • New South Wales: NSW Elder Abuse Helpline – 1800 628 221
  • Northern Territory: Police – 131 444
  • Queensland: Elder Abuse Helpline – 1300 651 192
  • South Australia:
    • Aged Rights Advocacy Service – 08 8232 5377
    • Country callers – 1800 700 600
  • Tasmania: Tasmanian Elder Abuse Helpline – 1800 44 11 69
  • Victoria: Senior Rights Victoria – 1300 368 821
  • Western Australia: AdvoCare Elder Abuse Helpline – 1300 724 679
• You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.