Most people find out how these documents work at the worst possible moment. Usually it is a phone call. A bank, a fund, a hospital, an aged care provider, someone polite explaining that they cannot talk to you about it.

If you are the adult child caring for a parent, that sentence lands hard, because you are the one holding the whole thing together. You booked the appointment. You know the medication. You have the paperwork on the passenger seat of your car.

None of that is authority. In New South Wales, authority to act for someone else generally comes from a document they signed while they had capacity, or from a tribunal deciding later. This article explains what those documents are, what each one does, when they start and stop, and what happens when nobody was appointed. This is general information only.

The three roles, and why they get confused

Ask ten people to explain the difference between a power of attorney, an enduring guardian and an executor and you will get ten different answers. They are separate roles, they cover separate decisions and they are alive at separate times.

An enduring power of attorney covers financial and legal decisions. In NSW it is made under the Powers of Attorney Act 2003. It lets the person you appoint deal with banks, pay bills, manage property, handle tax and manage investments, within whatever limits the document sets.

An enduring guardian covers health and lifestyle decisions. In NSW that appointment sits under the Guardianship Act 1987 and can extend to where a person lives, what services they receive at home and what medical or dental treatment they are given.

An executor is named in a will, and that role has no power at all while the person is alive. Executor authority begins at death, and for many estates it is confirmed through a grant of probate. A family relying on “it is all sorted, I am the executor” is relying on a document that has not started working yet.

What “enduring” actually means

A general power of attorney stops working if the person who made it loses capacity. That is the opposite of what most families need, because losing capacity is the exact situation they are worried about.

An enduring power of attorney is drafted to keep operating in that situation. In NSW, an enduring appointment has formal requirements, including a prescribed form and a certificate from an eligible witness such as a solicitor, who explains the effect of the document before it is signed. Enduring guardianship has its own witnessing requirements.

The requirements exist for a reason. These documents hand real power to another person, so the law wants evidence that the person who signed understood what they were doing. This is where tailored advice matters, because a document that does not meet the formal requirements may not do what the family assumed it did.

The window that closes quietly

Here is the part I most want people to take away. Both of these appointments can generally only be made by someone who has capacity to make them.

Capacity is not all or nothing. It is decision specific and it can change day to day, which is why a person may still be able to make some decisions and not others. There is, though, a point past which a person can no longer appoint an attorney or a guardian, and that point does not announce itself.

Nobody gets a letter. Families usually recognise it in hindsight, by which time the option is gone.

Take a man I will call Damien. His mother, who I will call Vanessa, had been forgetful for a couple of years in the way that everyone laughed about at Christmas. When she had a fall and did not really come back from it, Damien went looking for the documents and found a will from 1998 and nothing else. He had assumed that being named executor meant something now. It did not.

What happens if nobody was appointed

If capacity is already gone and no enduring appointment exists, decisions do not simply pass to the closest family member. Australia has no automatic rule that the eldest child, or the child doing the caring, gets to step in.

In NSW, an application can be made to the Guardianship Division of the NSW Civil and Administrative Tribunal. The Tribunal may make a guardianship order covering lifestyle and health decisions, and a financial management order covering money and property. It may appoint a family member. It may instead appoint the Public Guardian or the NSW Trustee and Guardian, depending on the circumstances, the family situation and what it considers to be in the person’s interests.

That process protects a lot of people and it does important work. It is also slower and more public than a signed appointment, and the outcome is not the family’s to choose. Where there is conflict between siblings, the process can be significantly harder again. Your situation may differ.

There is one more piece worth knowing. An enduring power of attorney and an enduring guardian appointment both end at death. The moment a person dies, authority moves to the executor named in the will. Families are often mid stride when this happens and do not realise the ground has shifted underneath them.

Free guide Our Ageing Parents and Strong Families guide sets out the conversations to have, the documents that matter and a sensible order to work through them, free to download.

✦ Download the free Ageing Parents and Strong Families guide

How to start when the documents are not done yet

It is National Carers Week, theme “Care for a carer: Making carers visible”, and carers are exactly the people who hit this wall first. If that is you, the practical starting point is not a legal document. It is information.

Sorted Life is the system we built for this. It records where everything is: bank accounts, superannuation and the insurance held inside it, where passwords are kept, subscriptions, devices, cloud storage, where legal documents are stored, business and trust structures, personal wishes and a crisis guide for the first 24 and 72 hours.

Sitting down with a parent to fill one in is also a soft way into the harder conversation, because it is about facts rather than control. Nobody feels they are handing over their independence when they are writing down which fund their super is with.

✦ Start with Sorted Life

The conversation is the whole job

If your parents still have capacity, the appointments are usually not complicated to put in place. Getting to the conversation is the hard part.

Lead with your own. Tell them you have done yours and it made you realise you do not know what they would want. Ask who they would choose rather than what they will give you, and let them choose someone else if that is their preference. A name existing is the win.

If you want to understand how the pieces connect before you do anything, a Family Wealth Planning Session is an hour on Zoom with Jaime and Chandla where we map the family, the assets and the goals and design the strategy before any documents are drafted. You leave with clarity either way, and there is also a free fifteen minute clarity call if you would rather start smaller.

✦ Book a Family Wealth Planning Session

This article is general information only and not legal advice. Estate planning laws differ across Australian states and territories. You should obtain legal advice specific to your circumstances before making decisions.