Have we become focused on wills and estate disputes at the expense of the Power of Attorney? What do the statistics say about the likelihood of either dispute? Why should we shift our focus back to the Power of Attorney?
If you look at the statistics, which we will do during this Webinar, you will see that there is a far greater likelihood of a dispute while your client is alive than after they have died. Additionally, if the dispute happens while they are alive, there is a risk that the Public Trustee will become the decision maker where as the risk of this happening after death is just significantly lower.
LESS WILLS THEN?
So am I saying that we are focused on Wills too much? No, not at all. In fact I think that the reason that the statistics for Wills disputes are so much lower is at least in part because of the hard work of the legal profession to get people to start talking about these issues again, and to understand that you will die so you should plan for this.
However, I think the time has come to consider how we approach the Power of Attorney, and why. We do talk about it when we want to protect against elder abuse, and that is important, but in the absence of elder abuse this is still a critical document for our clients.
third party assumptions
As well as the risk of the Public Trustee being appointed as the decision maker, a risk that doesn’t really exist in Estate matters, there is also the third party assumptions that are brought to bear on these people like -
If the family member understood the severity of the medical needs, they could not possibly think the family member would prefer to remain at home, therefore they must not understand the severity of the medical needs - see for example HCI v NSW TG [2026] NSWCATAD 87
Where a home has been purchased for Mum to live in, mostly with the daughter’s money, and the daughter is the attorney, and providing in home care, the mother needs the protection of a financial manager (so we should suspend the POA) - see for example YQR v YQS [2026] NSWCATAP 95
These are just two of the assumptions that I see in the cases, not just these two cases but repeated time and time again. The Public Trustee and the Tribunal have no reason to believe that it is wrong to say the person wanted to remain at home, when survey after survey says that Australians want to aged and die at home with care coming into the home. The Public Trustee and the Tribunal have no reason to believe that the parent who is being provided for financially and practically needs financial management, and certainly the mother would prefer not to pay the Public Trustee’s fees for that management. But again, we see these types of decisions over and over again in the cases.
The risk of the appointment of the Public Trustee should on it’s own be enough to get us to pay more attention to this document.
Most of our older clients would do anything to avoid being managed by the Public Trustee. Most lawyers would agree that the fees that they charge, and the approach that they take, are reason enough to avoid this on behalf of the clients. While the clients may not specifically tell us that the reason that they are preparing a Power of Attorney is to avoid the appointment of the Public Trustee, we know that the consequence of giving merely peripheral thought to the Power of Attorney and their aged care may be the involvement of the Trustee or the Tribunal.
The CPD Event
This Webinar will run for an hour Wednesday 24 August 2026 at 1pm AEST and hopefully we will have time to discuss some questions. Once you have registered you are welcome to forward your questions or real life examples to me before the Webinar so that I can include them. It will cost $100 per person to attend, and we will work through a few different approaches to getting clients to take these decisions seriously.
In keeping with previous CPDs, you will get a $50 discount code if you email a requisition from the Supreme Court in relation to an Estate matter and provide enough information for the requisition to make sense. I will bundle them together and they will form part of the subject matter material available to participants. Email it to janis@janisconsults.com and then I will send you the discount code and a survey for you to complete with further questions. If you give me two requisitions you could attend for free.
If you have any questions then please reach out to me at janis@janisconsults.com
NSW Estate Lawyers Facebook Group
Did you know about the free Facebook Group? This is a group for NSW Estate Lawyers to discuss things that are particular to practising Estate law in this State. Here are some examples of things we might discuss -
(1) I have an overseas death certificate, it doesn’t fit the questions in the online system, has anyone else had this problem?
(2) Does anybody have better contact details for ABC bank?
(3) I have a Will where the parties divorced (so the Executor has since divorced the deceased), but the online system doesn’t seem to give me the option to respond with divorced (only deceased), what should I do?
Of course more recently there is a lot of discussion about pragmatic issues with the new online system. We might also share the occasional post that only other lawyers who practice in this area will appreciate. The idea is to help and support each other, and share information that is helpful.
If you would like to join you can just search for “NSW Estate Lawyers” in groups on Facebook, please make sure that you answer the questions.
