How do I make a Power of Attorney? (2019 Update)
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’.
What is a Power of Attorney?
A Power of Attorney is a legal document which allows someone else to act on your behalf as your ‘attorney’. When someone is acting as your attorney, they are able to sign legal documents on your behalf and manage your affairs. There are many reasons why you may want to appoint a power of attorney which include (but are not limited to):
- If you become sick
- If you are travelling overseas for an extended period of time
- When you want to entrust another person to make decisions on your behalf
Your power of attorney will be in control of spending and managing your money, bank accounts, shares, real estate and other assets. When deciding who to appoint, it’s important to consider who will make decisions in your best interests and keep accurate records of their decisions over your affairs.
Your attorney must at least 18 years of age and can’t make personal, health or lifestyle decisions for you. Your attorney can be a family member, close friend, solicitor or even the NSW Trustee and Guardian. It is your choice as to how much and what powers you give them.
- A General Power of Attorney is usually appointed for a specific period of time. Notably, their appointment will become inactive if you no longer 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.
It’s important to note that whilst you have capacity, you still have the right to make decisions about your power of attorney. This means that you can un-appoint someone or appoint someone else at any time.
Can I appoint a Power of Attorney?
In order to appoint a power of attorney, you must be:
- Over 18 years old
- Understand what you are signing and have the mental capacity to do so
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 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 whilst you are alive. This position becomes redundant after death as this is when your will comes into effect.
The Importance of an Enduring Power of Attorney
An Enduring Power of Attorney is an important planning tool for your future, and it should be given the same level of consideration as your Will. If they remain in that role until you no longer have capacity, they will have sole authority over your finances and affairs. This can become difficult if you no longer wish for this person to act on your behalf.
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. This can be an arduous process – so you should appoint one while you can.
How do I make a Power of Attorney and Enduring Power of Attorney?
You can do this easily online in a matter of minutes.
For a 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 licensed 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 these documents 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.
- 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, their appointment 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.
You can also register in NSW at the Land and Property information. They 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 appointment’s validity.
Enduring Powers of Attorney made inside NSW
Your enduring power of attorney will ordinarily only be effective in the State or territory in which you appointed them. In order for your appointment to be valid elsewhere, you should make enquiries as to the requirements of that state, territory or country. If you’re unsure whether your appointment is valid, it is worth consulting with a lawyer.
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.