Updated 23 October 2026
Wills - Potential Problem #42: Not Planning for Long-Term Care
Long-term care can affect your savings, your home and the inheritance you hope to leave. Planning early helps your family understand your preferences, arrange suitable support and avoid rushed financial decisions. However, putting care instructions in a will does not give someone authority to act while you are alive.
In NSW, your will deals with your estate after death. An enduring guardianship appointment and an enduring power of attorney address different decisions during your lifetime. Used together, they can help your chosen representatives organise care lawfully while protecting your dignity, independence and financial interests.
1. Appoint an enduring guardian for care and accommodation
An enduring guardian can make specified personal, health and lifestyle decisions when you cannot make those decisions yourself. Depending on the appointment, this can include where you live, which support services you receive and consent to medical or dental treatment.
Choose someone who understands your values and can discuss practical options with clinicians and care providers. Record preferences about remaining at home, proximity to family, language, religion and daily routines. Discuss a substitute appointment if your first choice cannot act.
Capacity is assessed for the particular decision. A dementia diagnosis does not automatically remove every decision-making right. Someone may need help managing investments while still understanding their accommodation options. Support the person to participate and obtain appropriate clinical evidence where capacity is uncertain.
2. Use an enduring power of attorney alongside guardianship
An enduring power of attorney allows an appointed attorney to handle authorised financial and legal matters and continues despite loss of capacity. Its commencement and limits depend on the document. A general power of attorney does not provide the same protection after capacity is lost.
For aged care, the attorney may arrange payments, manage accounts and deal with accommodation agreements or property within their authority. The guardian addresses care and accommodation choices. An attorney’s financial authority does not, by itself, permit health decisions or restrictions on movement.
The same trusted person may hold both roles, but the responsibilities remain distinct. If different people are appointed, they should coordinate: a suitable placement must also be financially workable. Ask for written fee information, keep transaction records and obtain advice before committing to a property sale. Your care needs take priority over relatives’ expectations of an inheritance.
3. Review the September 2026 guardianship update
From 1 September 2026, the prescribed appointment form under the Guardianship Regulation 2026 expressly includes an optional restrictive-practices function. It allows the appointed guardian to consent to, or withhold consent to, practices that restrict rights or freedom of movement.
This is particularly relevant where future dementia care could involve a secure unit. It is a reason to review the document’s scope, rather than assume an accommodation or medical-treatment clause covers every decision. The new form does not automatically add this function to an older appointment.
Existing appointments are not automatically invalid. Have a lawyer check their wording, any limits and whether changes are appropriate while you have the necessary capacity. If capacity to change the appointment has already been lost, NCAT may need to review it. Express restrictive-practices authority was possible before this form update.
4. Understand the limits on restricting movement
Restrictive practices are not a convenient shortcut to nursing-home placement. Under current aged-care guidance, providers must meet strict safeguards: use only as a last resort to prevent harm, alternative strategies tried and documented, the least restrictive approach, the shortest necessary duration, informed consent, monitoring and regular review. A behaviour support plan is also required.
The person gives their own consent where they have capacity. If they cannot, the provider must establish the appropriate substitute decision-maker’s legal authority. A guardian’s agreement alone does not remove the provider’s other obligations.
Forcing a placement despite the person’s objection raises a separate issue. NSW Health guidance explains that only NCAT or the Supreme Court can approve a coercive accommodation function. An ordinary enduring guardianship appointment should not be treated as permission to force someone into care. Seek advice promptly if a proposed discharge, placement or secure environment is disputed.
5. A real decision about a secure dementia unit
In KXE (2024), NCAT considered an aged-care resident who had appointed her son and granddaughter as both enduring guardians and attorneys. Her guardianship document covered accommodation and healthcare but did not expressly cover restrictive practices.
The resident lived in a secure unit with a coded keypad she could not operate. NCAT found this restricted her freedom of movement and constituted environmental restraint. It varied the existing enduring guardianship appointment to add authority concerning that restraint, preserving her chosen decision-makers rather than replacing them.
The authority was subject to safeguards, including last-resort use, the least restrictive form, the shortest necessary period and a behaviour support plan. The decision illustrates why an attorney and an accommodation clause may leave a separate consent issue unresolved. It was decided under the aged-care framework then operating; the current requirements must also be checked.
6. Budget using current aged care rules
The Aged Care Act 2024 commenced on 1 November 2025, placing greater emphasis on older people’s rights and supported decision-making. Financial planning should support those rights. Residential aged-care fees depend on circumstances including income, assets, accommodation choices, entry date and transitional protections. Obtain an individual assessment instead of relying on a friend’s fee arrangement.
There is also a recent home-care change. From 1 October 2026, approved personal-care services under Support at Home no longer require participant contributions where they are included in the support plan and sufficient funding is available. Contributions can continue for other services, including domestic help and gardening.
Prepare a cash-flow forecast before choosing how to fund accommodation. Compare regular income with care payments, household commitments and a reserve for unexpected needs. Ask an appropriately qualified financial adviser to explain the consequences of retaining, renting or selling the home. A property-rich household may still have difficulty meeting regular payments. Keep the proposed care agreement, assessment information and written advice together so the attorney can understand both the immediate commitment and the longer-term effect.
AIHW recorded approximately 77,400 admissions to permanent residential aged care in 2024–25. This is an Australia-wide count of admissions, not unique people or a measure of estate losses. It shows why residential care deserves consideration alongside support at home.
7. Prepare before an urgent admission
First, review the documents. Bring your will, enduring power of attorney and enduring guardianship appointment to the same review. Check names, substitute appointments, commencement conditions and the precise functions granted. A will cannot repair missing lifetime authority.
Second, discuss realistic options. Consider home support, respite and residential care with the person, their treating team and the proposed representatives. Record preferences, likely funding needs and practical arrangements for a partner remaining at home.
Third, make documents accessible. Tell representatives where originals are held and provide copies to relevant providers, certified where required. The provider must check active authority for the particular decision. Registration as a My Aged Care supporter does not itself confer substitute decision-making powers.
Fourth, review when circumstances change. Revisit the arrangements after a diagnosis, hospital admission, relationship change or death of an appointed representative. If authority is missing or disputed, seek advice early about NCAT options. Providers cannot exclude someone solely because they lack an enduring guardian or power of attorney.
Tell your representatives how you prefer disagreements to be handled. Early discussion with the care team and legal advisers can clarify whether the problem is clinical suitability, affordability, consent or the wording of an appointment. Each requires a different response.
8. Put your care preferences into a workable plan
Good planning cannot guarantee that care will leave an estate untouched. It can reduce avoidable confusion and help decisions reflect your needs rather than an emergency timetable. The key is matching personal decisions, financial authority and current care requirements.
CM Lawyers’ wills and estates team can review your will alongside enduring appointments, explain their limits and identify gaps before they cause difficulty. Contact our team to discuss a plan suited to your circumstances.
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