Key points
- Planning early helps prevent problems that can arise when a person begins to lose capacity.
- Recognising early warning signs can stop problems before they escalate.
- Awareness and planning provide peace of mind for patriarchs, matriarchs and families.
Estate planning often focuses on choosing the right people to act when a person loses capacity or passes away. This might involve appointing attorneys, executors or trustees to manage wealth and decision-making. An equally important question is how to ensure those trusted roles are exercised responsibly so that decisions continue to reflect the true intentions of the donor of that power.
Unfortunately, there are an increasing number of Australians diagnosed with dementia every year. Currently, there are 433, 300 Australians living with dementia. Research shows that around 1 in 6 Australians experience elder abuse each year, often from someone in a position of trust and unfortunately, often a family member. The increase in dementia matched with the prevalence of elder abuse makes for a concerning backdrop. Many patriarchs and matriarchs also downplay health concerns or feel uncomfortable admitting that they have been misled. This can make it difficult for others to know whether decisions being made truly reflect their wishes.
While no plan can completely eliminate risk, thoughtful preparation and awareness can significantly reduce the likelihood of misuse of authority or misunderstanding and help protect both financial and personal wellbeing by also providing the right support for the individual who is losing capacity.
When capacity becomes unclear
One of the most challenging aspects of protecting intent and preventing poor decision-making is recognising when a person may no longer have full decision-making capacity. This is often where confusion and disputes begin. A decline in health, or even a diagnosis such as dementia, does not automatically mean a person has lost capacity. What matters is whether they can understand, weigh up and communicate decisions about their affairs.
While the requirements differ slightly in each state, generally, under Australian law, a person is considered to have capacity if they can understand the information relevant to a decision, retain that information long enough to make it, use or weigh that information as part of the decision-making process, and communicate their decision in some way.
This distinction matters because influence and coercion are not always obvious. They can occur quietly and gradually. It may begin with a family member helping with small decisions and end with significant changes to wills, superannuation nominations or property ownership. These actions might occur with good intentions or through subtle pressure, but either way, the outcome may be decisions that do not reflect the person’s original wishes.
That is why early, well-documented discussions with advisors and family members can help ensure everyone understands the patriarch’s or matriarch’s values and intentions while they are still able to express them clearly.
Recognising the warning signs
Understanding what to look for and taking small, practical steps early can help families avoid distress later. Loss of capacity can sometimes make individuals more vulnerable to poor decisions or undue influence. The warning signs are not always obvious, but there are often patterns that suggest when someone may be at risk. Situations that increase vulnerability include dependence on others, family conflict, social isolation, disability, or stress within care relationships. Patriarchs and matriarchs who are less familiar with their legal or financial rights can also be more exposed to undue influence.
Warning signs can include a new family member or acquaintance suddenly becoming involved in financial or legal decisions, or instructions about money or property being communicated by someone other than the patriarch or matriarch themselves. It may also involve a long-standing professional, such as a lawyer or accountant, being replaced without a clear reason. Requests to transfer assets, sell property for little or no value, or instances where a family member moves in and gradually takes control of decision-making can also raise concern.
If any of these situations sound familiar, it may help to check in and have an open conversation with gentle, open-ended questions about how decisions are being made and whether the patriarch or matriarch feels comfortable with those arrangements.
Even small changes in behaviour or communication can indicate that something is not right. Paying attention and being willing to talk about these concerns early can prevent problems from escalating later.
Best time for estate planning
The best protection against loss of control or family conflict is often early and well-structured planning. Estate planning is not just about what happens after death; it is about how a person’s affairs will be managed during their lifetime if they become unable to make decisions themselves.
By documenting their wishes clearly, patriarchs and matriarchs can help their families avoid uncertainty and reduce the risk of conflict. Tools such as enduring powers of attorney, updated wills and trust deeds can make it clear who is authorised to act and under what conditions. Early planning also allows these decisions to be made while the patriarch or matriarch is confident, informed and supported by professional advice.
Superannuation arrangements deserve particular attention. Because superannuation does not automatically form part of an estate, specific instructions are needed to ensure the funds are distributed as intended. Binding death benefit nominations or pension documentation should be reviewed regularly and updated when circumstances change. If attorneys or other representatives are to have authority over superannuation, this power should be clearly written into the enduring power of attorney document. If not, that limitation should also be clearly stated.
Clear documentation and ongoing review can help prevent disputes and maintain clarity.
Not mistrust but improving confidence
Working with an experienced professional means having records that show how decisions were reached. This can be invaluable later if questions arise about whether patriarch’s or matriarch’s choices were influenced or misunderstood.
Seeking independent advice should not be viewed as a sign of mistrust. Rather, it is a way to strengthen governance, create transparency and preserve relationships. Effective estate planning helps manage the loss of capacity with care and confidence, ensuring decisions remain consistent with the person’s intent.
Protecting intent and peace of mind
Estate planning is about much more than transferring assets. It is about protecting a person’s intent, ensuring their wishes are safeguarded from potential harm during life as well as after death.
Ultimately, effective estate planning is an act of care. It provides clarity for families, reduces the potential for conflict and helps ensure decisions are guided by respect rather than pressure. Above all, it allows the patriarch or matriarch’s voice to continue shaping the future, even when they can no longer speak for themselves.
