Leave It Too Late and the Tribunal Decides: Why Your Estate Plan and Enduring Guardianship Can't Wait

When people think about “getting their affairs in order," they usually think about a will, a document that speaks only after they die. But a will does nothing while you are alive. If you lose the ability to make decisions for yourself through dementia, a stroke, or a sudden illness, a will cannot say where you live, who manages your money, or what medical care you receive. Those decisions are governed by an entirely different set of documents: an enduring power of attorney and an enduring guardianship. And the cruel catch is this: you can only make them while you still have the mental capacity to understand them. Leave it too late, and the choice is taken out of your hands and out of your family’s.

A recent decision of the NSW Civil and Administrative Tribunal, Victoria (a pseudonym) [2025] NSWCATGD 14, is a powerful illustration of what happens when planning documents fail or are changed too late and a family is left to fight over an incapacitated parent’s care and money. It is essential reading for anyone who has been meaning to “get around to” their estate plan.

The documents that speak when you cannot

A complete estate plan in New South Wales has three key parts, and only one of them is a will.

An enduring power of attorney lets you appoint someone to manage your financial and legal affairs, paying bills, dealing with your bank, and selling property. The word “enduring” is critical: unlike an ordinary power of attorney, it continues to operate after you lose capacity.

An enduring guardianship, made under the Guardianship Act 1987 (NSW), lets you appoint someone to make personal and lifestyle decisions if you cannot where you live, what services you receive, and what medical and dental treatment you have.

A will deals only with what happens to your assets after death.

Every one of these documents can only be validly made while you have the mental capacity to understand its nature and effect. If capacity is lost before they are in place or before they are properly updated, nobody can simply step in. Instead, an application must be made to the Guardianship Division of the Tribunal, which can appoint a guardian to make lifestyle decisions and refer the appointment of a financial manager (often the NSW Trustee and Guardian, or a private manager) under the NSW Trustee and Guardian Act 2009 (NSW). At that point, strangers to your kitchen table, a tribunal, and a bureaucracy decide who controls your life and your money. And as this case shows, the person the Tribunal chooses may not be the person you would have chosen.

The facts: two competing appointments, and a family at war

“Victoria” was an 87-year-old woman with six adult children. She had been diagnosed with Alzheimer’s dementia (though the diagnosis was disputed by one of her children), and after a period of functional decline, shingles, recurrent infections, and falls, she was living in a retirement village in regional New South Wales.

Victoria had tried to plan. In July 2023, while her cognition was not in question, she appointed her son Ross as both her enduring power of attorney and her enduring guardian. That was a valid, considered appointment made at a time she had capacity.

But then things changed and this is where the trouble began. In May 2024, after she had been admitted to hospital with confusion and decline, Victoria signed new documents: she revoked the 2023 appointments of Ross and instead appointed her daughter Angelica and another son, Edward, jointly, as her attorneys and guardians. The problem was twofold. First, Edward never accepted either appointment — and because the appointments were joint, the whole instrument was ineffective without him. Second, these new documents were signed at a time when Victoria’s capacity was in serious doubt. The net result was catastrophic for her planning: the 2023 appointment of Ross had been revoked, and the 2024 appointment of Angelica and Edward could not operate. Victoria was left with no effective, enduring guardian and no effective power of attorney at all—precisely when she needed them most.

Into that vacuum poured a bitter family conflict. Angelica disputed the dementia diagnosis, wanted her mother to return home to live, and opposed the sale of the family house. Ross, appointed by the Tribunal as financial manager in June 2024, considered the house had to be sold to fund his mother’s aged care. Angelica made serious allegations against Ross, went to the police, sought internal reviews of decisions to sell the house, and the Tribunal found took her mother to out-of-area doctors and pressed the retirement village’s nurses in ways that made Victoria’s care harder to manage. Meanwhile, around $50,000 in aged-care fees fell into arrears, and the house sat unsold, racking up rates and insurance.

The decision: the Tribunal steps in

Because Victoria no longer had capacity and had no working documents, the Tribunal had to decide everything.

On finances, it confirmed that Victoria was not capable of managing her own affairs she could not recall whether she owned a house, had no grasp of her financial position, and had “no rational plan” for how her affairs could be managed. It confirmed a financial management order and kept Ross as financial manager, finding Angelica’s alternative proposal (a reverse mortgage, subdivision, and a return home) so lacking in practical detail that it gave no confidence she could do the job.

On guardianship, the Tribunal found Victoria was a “person in need of a guardian”: of advanced age, with conditions affecting her cognitive and functional capacity, restricted in self-care and health decisions. Critically, it decided a formal guardianship order was necessary not because the family lacked willing decision-makers, but because the conflict between them was actively harming Victoria’s care. A guardianship order would make clear “where authority lies”.

Then came the most telling part. Both Ross and Angelica wanted to be guardian. The Tribunal appointed Ross the very person Victoria had chosen back in 2023 before her capacity was in doubt, and whose revocation had caused half the problem. It found Angelica, despite a loving relationship with her mother, was unsuitable: she would not accept professional advice, could not work constructively with the care team or her siblings, and would remove her mother home against medical advice. In other words, after two hearings, extensive medical evidence, and enormous family conflict, the Tribunal arrived at almost exactly the arrangement Victoria herself had put in place years earlier but only after stripping the family of the ability to decide for themselves.

The lessons: plan early, plan properly, and keep it current

Victoria’s case is a masterclass in why estate planning cannot wait, and why it must be done properly.

Make your enduring documents while you are well. Capacity can be lost suddenly and without warning. The only safe time to appoint your attorney and guardian is now, while nobody can doubt your understanding. Victoria’s 2023 appointments were valid precisely because she made them before her cognition was in question; her 2024 attempt failed in part because, by then, her capacity was doubtful.

An enduring guardianship is not optional. A will and even a power of attorney are not enough. Without a valid enduring guardianship, no one has clear authority to decide where you live or what care you receive, and your family may end up before the Tribunal to sort it out. Appointing a guardian in advance keeps that decision in your hands.

Get the mechanics right. Victoria’s 2024 documents were undone by a technical but fatal flaw: joint appointees, one of whom never accepted. How you appoint matters jointly, severally, or jointly and severally, with substitutes named in case your first choice cannot act. A document that looks fine can be worthless if the structure is wrong. This is exactly why these instruments should be professionally prepared.

Choose your decision-makers carefully and consider conflict. The Tribunal looks for someone who will respect professional advice, cooperate with others, and act without conflict. Appoint people who can work together (or structure roles to keep warring relatives apart), and name alternates. The best protection against a family war is a clear, considered appointment made in advance.

Review, but don’t revoke into a vacuum. Updating your plan is sensible but changing documents late in life, when capacity may be questioned, can destroy the very protection you had. If Victoria had left her 2023 appointments in place, there may have been no need for a Tribunal hearing at all. Any change should be made early, deliberately, and with advice.

Remember what is at stake. Without a plan, these decisions default to a tribunal and, for your finances, potentially to a government trustee. The people who love you lose the ability to simply get on with caring for you and instead find themselves in an adversarial process that can drain the estate and shatter relationships.

How Shire Legal can help

An estate plan is far more than a will. At Shire Legal, we help clients across the Sutherland Shire and beyond to put in place a complete, considered plan a valid will, an enduring power of attorney, and an enduring guardianship while they have the capacity to choose for themselves. We make sure the documents are correctly structured, name suitable decision-makers and substitutes, and are reviewed as life changes so that your wishes are followed and your family is spared the kind of conflict this case reveals.

The time to do this is now, while the choice is still yours. If you would like advice tailored to your situation, contact Shire Legal or book an appointment to speak with our team.

This blog provides general information and should not be construed as legal advice. Laws may have changed since the publication of this content. We recommend consulting with a qualified legal professional to ensure compliance with current legislation and to address specific circumstances.