The Conversation Nobody Wants to Have
Few things are more uncomfortable than sitting down with your mum or dad and saying, “We need to talk about what happens if you can’t manage your own affairs.”
It feels premature. It feels morbid. It feels like you are overstepping.
But here is the reality: if your parent loses mental capacity — through dementia, a stroke, a serious accident, or any number of health events — and there is no enduring Power of Attorney in place, no one in your family has automatic legal authority to manage their finances, pay their bills, access their bank accounts, or make decisions about their care.
Not you. Not your siblings. Not their spouse.
The only option at that point is to apply to the Guardianship Tribunal for an administration order — a process that is slow, expensive, invasive, and entirely avoidable.
This guide is written for adult children who want to help their parents set up appropriate Powers of Attorney. It covers how to have the conversation, what types of POA are needed, what to do if capacity is already diminished, and the practical steps for each state.
Why This Matters
The Numbers
According to Dementia Australia, there are currently more than 400,000 Australians living with dementia. One in three people over 85 will be affected. Beyond dementia, strokes, traumatic brain injuries, and other health events can also cause sudden loss of capacity.
The Consequences of No POA
Without an enduring POA, the consequences cascade quickly:
- Bank accounts are frozen — The bank will not allow anyone to access your parent’s money without legal authority
- Bills go unpaid — Mortgage, rates, utilities, insurance — all at risk
- Aged care cannot be arranged — Entering residential care requires financial decisions your family cannot legally make
- Property cannot be sold — Even to fund care, no one can sell your parent’s home without authority
- Medical decisions are complicated — While next-of-kin arrangements exist for emergency medical treatment, longer-term care decisions may require formal authority
- Government benefits are affected — Centrelink, Medicare, and aged care subsidies require someone with legal authority to manage applications
The Tribunal Alternative
If no POA exists and your parent has already lost capacity, you must apply to the Guardianship and Administration Tribunal (the name varies by state) for:
- A guardianship order — for health and personal decisions
- An administration order — for financial and property decisions
This process involves:
- A formal application (with fees)
- Evidence from medical practitioners about your parent’s capacity
- A tribunal hearing (often attended by your parent, family members, and sometimes a lawyer)
- Ongoing supervision by the tribunal
- Regular reporting and accountability requirements
- Potential disagreements among siblings about who should be appointed
The entire process can take weeks to months and cost thousands of dollars. A POA set up in advance avoids all of it.
How to Have the Conversation
This is the hardest part. Here is how to approach it.
Choose the Right Time
Do not bring it up during a family crisis or when emotions are high. Choose a calm, private moment — ideally when your parent is feeling well and alert. A quiet afternoon over a cup of tea is better than a chaotic family gathering.
Frame It Positively
This is not about taking control away from your parent. Frame it as:
- “Mum/Dad, I want to make sure we respect your wishes if anything ever happens.”
- “This is about you staying in control — choosing who makes decisions for you, rather than leaving it to a tribunal.”
- “It is like insurance — we hope we never need it, but we are glad it is there.”
Share Your Own Plans
If you have already set up your own POA and Will, mention it. “I have done mine already — it took about 20 minutes. I would love to help you do the same.” Leading by example is often the most effective approach.
Normalise It
Explain that this is something every Australian adult should have in place, regardless of age or health. It is not about being old or unwell — it is about being prepared.
Involve Their GP
If your parent is resistant, their GP can be a powerful ally. Doctors regularly advise patients about advance care planning and POAs. A recommendation from their trusted doctor may carry more weight than a suggestion from a child.
Respect Their Autonomy
Ultimately, this is your parent’s decision. You can encourage, inform, and offer to help, but you cannot force them to create a POA. If they are not ready, back off and try again later. Pressuring them can damage trust and make them less likely to engage.
Involve Siblings
If you have siblings, discuss the plan with them before approaching your parent. Disagreements among children about who should be appointed as attorney can derail the entire process. Ideally, everyone should be aligned before the conversation happens.
What Types of POA Do Your Parents Need?
Most elderly parents should consider creating three documents:
1. Enduring Power of Attorney (Financial)
This authorises a chosen person (the attorney) to manage financial and property affairs if the parent loses capacity. It covers:
- Bank accounts and investments
- Bill payments
- Property transactions (including selling the family home to fund aged care)
- Tax affairs
- Government benefits and pensions
- Insurance
This is the most critical document. Without it, financial paralysis occurs the moment capacity is lost.
2. Enduring Power of Attorney (Health and Personal)
Known by different names in different states (enduring guardian in NSW, medical treatment decision-maker in Victoria, etc.), this authorises a person to make health and personal care decisions, including:
- Medical treatment decisions
- Aged care and accommodation decisions
- Personal care and daily living decisions
- Access to health information
3. Advance Care Directive
Also known as an advance health directive or living will, this document sets out the parent’s wishes for medical treatment in specific situations — such as whether they want life-sustaining treatment if they are terminally ill or in a persistent vegetative state. It guides medical practitioners and the appointed attorney.
For a comprehensive overview of all types of POA and how they work, see our guide to Powers of Attorney.
Who Should Be Appointed as Attorney?
Choosing the right attorney is one of the most important decisions your parent will make. Consider:
Qualities to Look For
- Trustworthy — This person will have significant power over your parent’s finances and personal decisions
- Organised and reliable — Managing someone else’s affairs requires attention to detail
- Available — They need to be accessible and responsive, especially in a crisis
- Emotionally capable — Making difficult decisions about a parent’s care can be emotionally taxing
- Financially responsible — An attorney who is in financial difficulty may face temptation
- Geographically accessible — While much can be done remotely, proximity helps
Common Choices
- Adult children — The most common choice, but can create family tension if one child is chosen over others
- Spouse — Appropriate if the spouse is younger and in good health, but a backup should be named in case the spouse also loses capacity
- Multiple attorneys — Two or more attorneys can be appointed to act jointly (both must agree) or jointly and severally (either can act independently)
- Professional attorney — A solicitor, accountant, or trustee company can be appointed, though they charge fees
Potential Pitfalls
- One child appointed, siblings feel excluded — This is the most common source of family conflict. Consider appointing joint attorneys, or at least explaining the choice to all children.
- Attorney is interstate or overseas — This can create practical difficulties for property transactions, bank visits, and aged care arrangements.
- Attorney has a conflict of interest — For example, an adult child who stands to inherit the property should not be the sole attorney deciding whether to sell it to fund care.
What If Your Parent Has Already Lost Capacity?
If your parent’s cognitive decline has progressed to the point where they lack the mental capacity to understand and create a POA, it is too late to set one up. A POA can only be created while the person has capacity — that is, they understand:
- What a POA is
- What powers they are granting
- Who they are appointing
- The consequences of creating the document
If capacity is gone, the only option is to apply to the Guardianship Tribunal for formal orders.
The Grey Area: Mild Cognitive Decline
Many elderly people have some degree of cognitive decline but still retain sufficient capacity to create a POA. The legal test is not “perfect mental function” — it is whether the person understands the nature and effect of the document they are creating.
If your parent has mild cognitive impairment or early-stage dementia, they may still have capacity to create a POA. Act quickly — the window may be closing. Consider:
- Having their GP assess their capacity and provide a written opinion
- Engaging a solicitor who can assess capacity as part of the POA creation process
- Creating the POA with appropriate witnesses who can attest to the parent’s capacity at the time of signing
Do not delay. The difference between “still has capacity” and “no longer has capacity” can be a matter of months or even weeks.
The Practical Steps
Step 1: Have the Conversation
As described above — choose the right time, frame it positively, and involve siblings.
Step 2: Gather Information
Your parent will need to decide:
- Who they want as attorney (and a backup)
- Whether attorneys should act jointly or severally
- Whether to include any restrictions or conditions
- Their wishes for medical treatment (for the advance care directive)
Step 3: Create the Documents
Your parent can create their POA:
- Through a solicitor — recommended for complex situations (cost: $200–$500 per document)
- Through an online platform — for straightforward situations
- Through their state’s Public Trustee or legal aid — often at reduced cost or free for pensioners
Step 4: Sign and Witness
POA documents must be signed and witnessed according to state-specific requirements. In most states, at least one witness must be a qualified person (such as a justice of the peace, solicitor, or medical practitioner). Some states require a certificate from the witness confirming the principal appeared to understand the document.
Step 5: Register (Where Required)
In most states, an enduring POA should be registered with the relevant land titles office if it may be used for property transactions. Registration can also be done with some government agencies.
Step 6: Store Securely
Store the original POA documents in a secure, known location. Give certified copies to the appointed attorneys and keep a copy in a digital vault (such as ezyWill’s) so it can be found when needed.
Step 7: Review Regularly
Life changes — the appointed attorney may move overseas, become unwell, or pass away. Review the POA every few years to ensure it still reflects your parent’s wishes.
Helping Your Parent with Their Will Too
While you are having the POA conversation, encourage your parent to review (or create) their Will as well. The same urgency applies — a Will can only be created while the person has testamentary capacity.
ezyWill provides a complete estate planning platform where your parent can create their Will, set up their digital vault, and store all critical documents in one secure place. You or another family member can help them through the process.
Help your parent get started with ezyWill — because the best time to prepare is before you need to.
For guidance on choosing executors, see our article on how to choose the right executor. For information on what happens after a parent passes, see our estate administration guide.
This article is for general informational purposes only and does not constitute legal advice. Power of Attorney laws, capacity requirements, and tribunal processes vary by state and territory. For complex situations or where capacity is in doubt, we strongly recommend consulting a qualified solicitor. ezyWill provides legally structured Will templates and estate planning guidance tailored to Australian state and territory requirements.
