Power of Attorney

A power of attorney is a legal document which appoints a person (your attorney) to make decisions about your legal affairs, for example, your money, bank accounts, real estate, shares and other assets.

As with the executor of your Will, generally your first choice for your attorney is your spouse. If you do not have a spouse, choose someone you trust to look after your legal and financial affairs if you are incapacitated.

What is the difference between a ‘general’ power of attorney and an ‘enduring’ power of attorney?

A general power of attorney automatically ceases to have effect if you lose the mental capacity to make decisions. This type of appointment is useful for short term appointments, for example, while you are overseas.

An enduring power of attorney continues to operate after you have lost your mental capacity to make decisions.

What issues can the attorney make decisions about?

Your attorney can make decisions about your property or financial affairs. This means that they can operate your bank accounts, pay your bills, and sell or buy property or shares on your behalf. In making these decisions, your attorney must always act in your best interests and cannot use your assets for their own benefit.

*Decisions about medical or lifestyle choices are made by your guardian. You may appoint an enduring guardian by using a separate legal document (an Appointment of Enduring Guardian).

Can I make an enduring power of attorney?

Yes as long as you are capable of understanding the nature and effect of the power of attorney. Where someone with a cognitive disability wishes to appoint an attorney then an assessment by an appropriate health professional of the person’s understanding would need to be made.

Why make an enduring power of attorney?

An enduring power of attorney will continue to have effect even if you lose mental capacity which may occur suddenly (for example, by stroke or accident). If you do not have an enduring power of attorney and you lose mental capacity, there may be no one with legal authority to manage your financial affairs. They will need to apply to the Guardianship Tribunal to be appointed as your attorney (if approved).

Who should I appoint as my attorney?

You should choose a person who you know will act responsibly and is trustworthy such as a family member or close friend.

Who can witness an enduring power of attorney?

Your witness must complete a certificate at the end of the enduring power of attorney. For the appointment to be enduring, this certificate must be completed by a specific type of witness for example, an Australian solicitor or barrister.

How many attorneys can I appoint?

You can appoint more than one attorney and you can appoint your attorneys to act jointly or separately.

When does an enduring power of attorney start?

Your enduring power of attorney can commence immediately or at some future date or only when your attorney thinks you need help managing your financial affairs.

What powers can I give an attorney under an enduring power of attorney?

You can limit the power you give to your attorney in the enduring power of attorney. For example, the appointment is for specific things, such as operating a particular bank account or selling a property within NSW. If you do not limit the power given to your attorney then your attorney is able to make any decision or do anything about your finances or property which you could do yourself.

What are the duties and responsibilities of an attorney?

The attorney has a responsibility to act only in your best interests. Your attorney must not do anything in their own interest which will conflict with your interests and must act within the limits of their powers.

Do I need to register the enduring power of attorney?

Generally only when the attorney wants to deal with real estate. In this case the enduring power of attorney must be registered (a fee applies) with Land and Property Information NSW.

When does an enduring power of attorney end?

An enduring power of attorney ends on your death, when you revoke it (while you have mental capacity to do so), if your attorney dies or can no longer act as your attorney or when you have more than one attorney appointed jointly and one of them dies or can no longer act as your attorney and you have specified that the power ends in these circumstances.

How do I revoke my enduring power of attorney?

You can revoke your enduring power of attorney by notifying your attorney that you have revoked the appointment either by telling them or by notifying them in writing. This can be done at any time as long as you have mental capacity to understand what you are doing.