Power of Attorney

What is an enduring power of attorney?

An enduring power of attorney is a legal document through which you (known as the principal) can appoint a person (known as the attorney) to make decisions about your property or financial affairs.

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

The difference is that a general power of attorney ceases to have effect after you lose the mental capacity to make financial decisions but an enduring power of attorney will continue to have effect even after you lose mental capacity.

Does the attorney make any decisions apart from financial ones under an enduring power of attorney?

The 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.

An enduring power of attorney cannot be used to make medical or lifestyle decisions for you. If you want to appoint someone to make medical or lifestyle decisions on your behalf, you will need to appoint an enduring guardian. Contact the Guardianship Tribunal for information if you want to appoint an enduring guardian.

Who can make an enduring power of attorney?

Anyone can make an enduring power of attorney if they are capable of understanding the nature and effect of the power of attorney. Capability means that the person has an understanding of the range of decisions which the attorney is authorised to make under the enduring power of attorney.

A person who has a cognitive disability may have capacity to make an enduring power of attorney. It would depend on their level of understanding about the power of attorney.

If there is any doubt about whether a person has the capacity to make an enduring power of attorney, then an appropriate professional (such as a neuropsychologist or geriatrician) should make an assessment of the person’s understanding. The assessment should be completed before the enduring power of attorney is made.

Why make an enduring power of attorney?

By making an enduring power of attorney, you are choosing who you want to manage your financial affairs if you lose the mental capacity to do this for yourself. Unlike a general power of attorney, an enduring power of attorney will continue to have effect even if you lose capacity (eg. if you develop dementia or have a stroke or are injured in a car 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. This may mean that the Guardianship Tribunal or the Supreme Court will need to appoint a financial manager for you.

Who should I appoint as my attorney?

An attorney can have enormous power over your affairs. You should choose an attorney whom you trust and who will manage your finances in a responsible way. If your financial affairs are complex, you should appoint an attorney who is capable of managing complex affairs and is available to do so.

You may wish to appoint a family member or a close friend as your attorney. You can also appoint the Public Trustee or a trustee company but fees will apply. You should contact these bodies for more information.

Who can witness an enduring power of attorney?

At the end of the enduring power of attorney form there is a witnesse’s certificate which is required under section 19 of the Powers of Attorney Act 2003.

This certificate can only be completed by:

• · an Australian solicitor or barrister
• · a registrar of a NSW Local Court
• · a licensed conveyancer who has completed an approved course under the Powers of Attorney Act
• · an employee of the Public Trustee/ private trustee company who has completed an approved course under the Powers of Attorney Act
• · a qualified overseas lawyer.

You can appoint more than one attorney. When appointing more than one attorney, you should choose people who can cooperate with each other and work together in your best interests.

You can appoint your attorneys to act:

• · jointly and severally (the attorneys can act together or separately),
• · severally (the attorneys can act separately),
• · or jointly (the attorneys must agree on all decisions).

However, if you appoint your attorneys to act jointly and one of the attorneys can no longer act for some reason (eg. because of death or incapacity), then this will automatically end the enduring power of attorney.

When does an enduring power of attorney start?

You can choose when you would like your enduring power of attorney to start. You may want the enduring power of attorney to start immediately after you appoint the attorney or at some future date. You may wish it to start only when your attorney thinks you need help with managing your financial affairs.

You need to indicate on the form in clause (iii) when you want the enduring power of attorney to start. If you do not indicate this on the form, then the enduring power of attorney will come into effect when the attorney accepts the appointment by signing the form.

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

You can give your attorney the power to make any decision or do anything about your finances or property which you could do yourself. These broad and general powers include selling property, making investments, accessing cash and buying or selling shares.

You can control the power you give to the attorney by placing limits or conditions in the enduring power of attorney. For example, you can give the attorney limited authority to do specific things, such as paying regular bills but not selling property.
If you wish to include limits or conditions in your enduring power of attorney you should seek legal advice about the best way to do this.

What are the duties and responsibilities of an attorney?

An attorney is in an important position of trust. The attorney has a responsibility to always act only in your best interests. The attorney must :

• · avoid doing anything as an attorney which would mean that their interests conflict with your interests;
• · obey your instructions while you are mentally capable and any directions you make in the enduring power of attorney;
• · act according to any limits or conditions placed on their authority;
• · not give gifts or give themselves or others a benefit using your finances unless you specifically authorise this;
• · keep their finances and money separate from yours;
• · keep accurate and proper records of their dealings with your finances or property.

Do I need to register the enduring power of attorney?

If your attorney wants to use the enduring power of attorney to deal with any real estate you own in NSW, then, in most cases, the enduring power of attorney must be registered with Land and Property Information NSW. There is a fee charged for registering an enduring power of attorney.

Even if there is no requirement to register the enduring power of attorney, you may choose to do so. By registering it, the enduring power of attorney:

• · will be on record as a public document;
• · will be kept safe from loss or destruction
• · may be more easily accepted as evidence that your attorney has authority to deal with your property or financial affairs.

If your enduring power of attorney is registered but you later revoke it, you should also register the revocation.

When does an enduring power of attorney end?

An enduring power of attorney ends:

• · when you revoke it (so long as you have mental capacity at that time);
• · on your death;
• · when your attorney dies or can no longer act as your attorney, or when you have multiple attorneys appointed jointly and one of them dies or can no longer act as your attorney.

How do I revoke my enduring power of attorney?

You can revoke your enduring power of attorney any time so long as you have mental capacity to understand what you are doing at the time you revoke it. You should notify the attorney(s) that you have revoked the enduring power of attorney either by telling them or in writing. It is clearer for everyone if you revoke the enduring power of attorney in writing, especially if it is registered at Land and Property Information NSW. If you do not tell the attorney about the revocation, the attorney can keep dealing with your finances and property.

After revocation, you should destroy the original and any copies of the enduring power of attorney.

What can the Guardianship Tribunal do in relation to enduring powers of attorney?

If there is a problem with how the enduring power of attorney is working, an application can be made to the Guardianship Tribunal or the Supreme Court for a review of the enduring power of attorney. The Guardianship Tribunal and the Supreme Court have the power to make a wide range of orders about enduring powers of attorney. For example, the Guardianship Tribunal could order the replacement of an appointed attorney or reinstate an enduring power of attorney which has lapsed.

You should seek legal advice if you are considering this and explore other options of resolving the problem.

You can also contact the Guardianship Tribunal for information and brochures about reviews of enduring powers of attorney.

Can an interstate enduring power of attorney be used in NSW?

Yes. If an enduring power of attorney was made in another Australian state or territory then it is automatically recognised in NSW. This does not apply to enduring powers of attorney which are made overseas.

If you want to use your NSW enduring power of attorney in another state, you should make enquiries in that state as every state has a different law about this.

Where can I get legal assistance?

An enduring power of attorney is an important legal document. You should seek legal advice if you have any questions or concerns about enduring powers of attorney as this is a complex legal area.

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