What’s the Difference Between a Will, an Enduring Power of Attorney, and an Advance Care Directive? – Part I

When it comes to protecting your future and making sure your wishes are respected, estate planning is essential.

But many people aren’t quite sure what these documents are, or how they work together. One of the most common questions we are asked is: “What’s the difference between a Will, an Enduring Power of Attorney, and an Advance Care Directive?”

A Will – directions about who receives your assets and administers your estate

A Will comes into effect after you die and is your chance to outline your wishes and ensure and that your loved ones are taken care of. It has no legal power during your lifetime and after your death, your Will is governed by the Succession Act 2023.

A Will must include:
• who will be responsible for carrying out your wishes (your executor);
• how your estate (this could be property, money and personal items) should be distributed; and
• to whom your estate should be distributed to (your beneficiaries).

A Will might also include:
• Funeral and burial instructions for your executor and family members to be guided by;
• Trusts and clauses for asset protection;
• Guardianship clauses for your children under the age of 18.

Guardianship clauses in Wills do not have formal legal authority as the Federal Circuit and Family Court of Australia is the only institution in Australia that can make orders in relation to children and custody matters. However, having a guardianship clause in your Will may mean there is less chance there will be dispute over the care of your children, and in the event of a dispute, the Family Court will consider the guardianship clause seriously.

A Will must be signed in accordance with the Succession Act 2023 to be admitted to Probate in “common form.” If it is not signed in accordance with the Succession Act 2023, additional applications to the Supreme Court may be needed to admit it to Probate.