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Home | Will, Will Disputes & Estate Law | Power of Attorney

Enduring Power of Attorney

An enduring power of attorney is a legal document by which you authorise a person to make financial decisions on your behalf such as:

  • Taking money out of your bank account;
  • Paying your bills;
  • Selling or purchasing property, shares or other assets; and
  • Signing legal documents, leases, mortgages.

For certain transactions your power of attorney may need to be registered at the Land and Property Information NSW (LPI) and a registration fee applies.

Appointing a Power of Attorney

The most important decision you must make is who you appoint as your enduring power of attorney. The person you appoint must be someone you completely trust to act in your best interest.

If you appoint more than one attorney you must decide if they are to act either:

  1. Jointly – all appointed attorneys must sign all documents; or
  2. Jointly and severally – each appointed attorney can act separately from the other attorneys.

An enduring power of attorney continues to operate even after you lose the capacity to make decisions for yourself. Your power of attorney appointment ends on your death and your will then becomes active.

Cancelling your Power of Attorney

You can cancel your power of attorney at any time but you must have the capacity to do so and you must advise your appointed attorney in writing that the power of attorney has been cancelled. This is called revoking your power of attorney.  

The power of attorney document must be signed by you, and your signature must be witnessed by a lawyer or clerk of the court. The document must also be signed by the person you are appointing as your attorney, acknowledging their acceptance to act in your best interest.

FAQ

Do I need an Enduring Power of Attorney?

Do I need an Enduring Power of Attorney?

An enduring power of attorney is essential in the event of severe incapacity such as:

  • Stoke
  • Dementia
  • Alzheimer’s
  • Debilitating accident

In the event you lose capacity to manage your own financial affairs and you have not appointed an attorney your affairs may be frozen and an application for a financial management order may be necessary. The making of a financial management order means that all or part of your financial affairs will be subject to management under the NSW Trustee & Guardian.

If I make a power of attorney, will I lose control of my affairs?

If I make a power of attorney, will I lose control of my affairs?

Making a power of attorney does not mean you will automatically lose control of your financial affairs. If you retain the capacity to make decisions for yourself, you will still manage your affairs as usual. The only difference is that you have given certain powers to another person. You can choose the powers and conditions for how the other person is to act when you make the power of attorney document. You can revoke a power of attorney at any time as long as you still retain the capacity to make decisions for yourself.

When does the appointment of an attorney take effect?

When does the appointment of an attorney take effect?

You can choose when an appointment takes effect, whether it is from the date you sign the document, the date the appointment is accepted, or upon some other event such as medical evidence being provided to the effect you have lost capacity.

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

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

A general power of attorney only operates whenever you retain capacity.

An enduring power of attorney continues to operate after you have lost capacity, which is why many people choose to make their appointments enduring. This ensures someone you trust will look after your affairs for you in the event you can't look after them yourself.

How many attorneys can I appoint?

How many attorneys can I appoint?

You can appoint more than one person as your attorney, and you can appoint them so they must act together or so they can make decisions independently of the other. You can also nominate substitute attorneys in the event they resign or are incapable of continuing to act as your attorney.

It is a good idea to limit the number of people you appoint to be your attorney at any one time. Practical considerations such as how close they are to you, how experienced they are at handling financial matters and whether they can work with any other appointed attorneys should also be considered.

What duties and responsibilities does a power of attorney have?

What duties and responsibilities does a power of attorney have?

Your attorney must always act in your best interests. They can be liable to you if they act in a manner contrary to your interests.

In general, attorneys must ensure they always place your interests above their own, avoid conflicts of interest, act in accordance with your instructions and directions, keep their finances separate form yours and keep good records of any dealings they undertake on your behalf.

Who should I appoint as my power of attorney?

Who should I appoint as my power of attorney?

You should only appoint people you trust as your attorney. You will be relying on them to act diligently and faithfully in the execution of their duties; and in your best interests.

What can't my power of attorney do?

What can't my power of attorney do?

Your attorney cannot:

  • Make a Will for you;
  • Vote for you;
  • Manage your personal and lifestyle affairs; or
  • Contest to medical treatment.

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