Read more about what a Power of Attorney is and how they operate.
Power of Attorney
Pursuant to the provisions of the Powers of Attorney Act 2003 (NSW) any capable adult person (‘the principal’) is able to appoint substitute decision makers on their behalf to make decisions about their own legal and financial affairs (‘attorney’). An appointment of an attorney can also be made on an enduring basis, which means that the appointment of the attorney continues even if the principal loses the ability to make decisions. At law, an attorney is defined to be a person ‘to whom the power is given’.
An attorney appointed in NSW, whether on an enduring or general basis, gives the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do. This power is very broad, which is why it is important to always know who and how a person may be appointed to be an attorney.
A prescribed power of attorney has effect subject to compliance with any conditions or limitations specified in the document that creates the appointment.
Attorneys are required to act in the best interests of the principal. It is common for spouses to appoint each other and sometimes their children to be attorneys as they are often held in a position of trust.
It is possible to revoke the appointment of an attorney, but it is necessary to ensure notice of the revocation is served on the attorney. An appointment of an attorney can also cease if, for example, the attorney vacates office, renounces the appointment, dies, becomes bankrupt or loses mental capacity.
Unlike a Will or an Enduring Guardian, the marriage of a principal does not change who they have appointed as their attorney/s. A document that appoints a general or enduring power of attorney remains unaffected by the principal’s marriage.
Separation or relationship issues do not affect the appointment of an attorney. As a principal places a lot of trust in their appointed attorneys, it is often advisable to review and consider carefully whether an attorney should remain appointed if relationship issues exist.
The appointment of an attorney is not automatically revoked by divorce. An attorney remains appointed even if the principal divorces their appointed attorney. This means that unless the power of attorney document is expressly revoked by the principal, the appointment of their ex-spouse as their attorney continues. That may not be a palatable or desirous outcome if the relationship between the person and their appointed attorney is no longer harmonious.
You should seek legal advice to ensure that any registered, unregistered, general, enduring and/or irrevocable powers of attorney documents are validly and legally revoked.
Read more about the effect of marriage on your Will.
Read more about the effect of marriage on your Enduring Guardian.
Whether you are married, separated or divorced you should still consider how marriage may affect your legal interests and your estate planning matters.