What is a Power of Attorney?

A Power of Attorney is a legal document made by one person (the ‘principal’) that allows another person to act on your behalf as your ‘attorney’. Examples of this are spending and managing the principal’s money, bank accounts, shares, real estate and other assets.

An attorney must be over 18 years old and is not entitled to make personal, health or lifestyle decisions for you.  An attorney can be a family member, close friend, a solicitor or a NSW Trustee and Guardian. It is your choice as to how much and what powers you give to your attorney.

  • A General Power of Attorney is usually given for a specific amount of time, it is no longer operational if you don’t have the capacity to make decisions.
  • An Enduring Power of Attorney will continue after you have lost capacity. You should use this if you want to give power to someone to make decisions after you lose capacity.

Are you eligible to make a Power of Attorney?

You must be:

  • Over 18 years old
  • Understand what you are signing and have mental capacity

If mental capacity is in doubt (e.g. dementia or an intellectual disability) an appropriate physician must make an assessment.

Will I lose my rights if I make a Power of Attorney?

No. If you are capable of making your own decisions then you have authority to make decisions in regards to your property and money.  It is important to make it evident in your Power of Attorney that you only want your Attorney’s power to take place when you can no longer make your own decisions.

What happens to my Will if I have a Power of Attorney?

A Power of Attorney operates when you are living; it is disregarded when you die and this is when a Will is operational.

The Importance of an Enduring Power of Attorney

An Enduring Power of Attorney is an important planning tool for your future, it should be given the same consideration as a Will.  If an Enduring Power of Attorney is left till too late when you no longer have capacity nobody will have the legal authority to make or manage your property and finances or someone may be chosen that you do not want to be your Attorney.

What to do if you haven’t made an Enduring Power of Attorney

A relative or another person will need to apply to the Guardianship Tribunal or the Supreme Court to have a financial manager appointed for you.

How do I make a Power of Attorney and Enduring Power of Attorney?

LawPath makes this process easy:

Power of Attorney and Enduring Power of Attorney: After the form is complete it must be witnessed by either a barrister, solicitor, registrar of the Local Court, an employee of the NSW Trustee and Guardian or trustee company, a qualified overseas lawyer or a licenced conveyancer. That person must also sign a certificate stating that they have explained the document to you and that you understood its effect.

  • Your appointed attorney must also sign the Power of Attorney and Enduring Power of Attorney to accept their appointment before they can act as attorney.

What responsibilities should your Attorney have?

An Attorney must:

  • Act in the principal’s best interest
  • Avoid conflict
  • Keep the attorney’s money and assets separate from the principal’s unless joint owners
  • Keep proper records of how the principal’s money and assets are managed
  • Not pay or give gifts or benefits to themselves or other people using your finances.

Can you cancel a Power of Attorney or change your mind?

Yes. If you still have capacity you can revoke or cancel your Power of Attorney.

You must

  • Let your attorney know
  • It is recommended to do so in writing to make your intention clear
  • If the attorney is not told they can continue to deal with your finances and property and you will be liable for their actions.

What if your Attorney is not looking after your affairs properly?

  • If you have capacity Power of Attorney can be revoked
  • The Guardianship Tribunal or the Supreme Court can intervene
  • If someone else is concerned about your welfare they would need to apply to the Tribunal or Court.

Note it is important to carefully select your attorney in the first place.

Do I have to register my Power of Attorney?

Yes.  Only if your attorney is going to sell, mortgage, lease or deal with your real estate, otherwise it is not necessary.

Register in NSW at the Land and Property information. A registered Power of Attorney will be:

  • On public record
  • Safe from loss or destruction
  • Accepted as evidence that your attorney is able to deal with your legal and financial affairs.

Enduring Powers of Attorney made outside NSW

NSW recognises Enduring Powers of Attorney made in other states or territories if they comply with the relevant legal requirements of that state.  Powers of Attorney made overseas cannot be used in NSW. Legal advice should be sorted to confirm your Power of Attorney’s validity.

Enduring Powers of Attorney made inside NSW

In order for your Enduring Power of Attorney made in NSW to be considered valid elsewhere, you should make enquiries as the requirements of that state, territory or country.

Unsure where to start? Contact a LawPath consultant on 1800LAWPATH to learn more about customising legal documents, obtaining a fixed-fee quote from our network of 600+ expert lawyers or to get answers to your legal questions.

Dominic Woolrych

Dominic is the CEO of LawPath, dedicating his days to making legal easier, faster and more accessible to businesses. Dominic is a recognised thought-leader in Australian legal disruption, and was recognised as a winner of the 2015 Australian Legal Innovation Index.