A power of attorney is a legal document that appoints someone (your attorney) to manage your financial and legal affairs on your behalf.
In New South Wales, there are two kinds of power of attorney:
- general power of attorney; and
- enduring power of attorney.
In some states, the power of attorney also allows your attorney to make decisions regarding your health and welfare.
A general power of attorney is only valid while you’re able to make your own decisions. If you lose your mental capacity and you can’t make your own decisions, the general power of attorney will no longer be valid. You might use a general power of attorney if you’re temporarily unable to do something and you need someone to act on your behalf (ie, if you’re travelling).
An enduring power of attorney continues to be valid even if you lose your mental capacity (ie, through accident, illness or disability etc). An enduring power of attorney allows your attorney to continue to handle your legal and financial matters when you can’t. In most cases, clients come to us to make an enduring power of attorney.
Unlike a general power of attorney, the enduring power of attorney must be witnessed by a lawyer after that lawyer has provided legal advice regarding the nature and the effect of the enduring power of attorney.
If you’ve lost your mental capacity, you’re no longer able to make decisions for yourself. For example, if you suffer an injury resulting in you being in a coma or worse (but not dead), then you’ll have lost your mental capacity. If you have an illness and you’re no longer communicative, you could also have lost your mental capacity. A doctor can also examine you and determine whether you’ve lost your mental capacity or you’re no longer able to make decisions for yourself.
During those times when you don’t have your mental capacity, your attorney (the person you appointed under an enduring power of attorney) can then make decisions on your behalf.
Regardless of whether it’s a general power of attorney or an enduring power of attorney, deciding on who you should appoint as your attorney is an important decision.
Your attorney must be able to make decisions for you, manage your legal and financial affairs and act in your best interests. Naturally, this should then be someone that you trust and many clients appoint close family members or a professional adviser such as their lawyer or accountant. Your attorney must also be an adult person (ie, at least 18 years old).
Yes, you can appoint as many attorneys as you like – however, appointing multiple attorneys can create other legal and practical complications. You should always seek legal advice before you decide to appoint multiple attorneys.
There are several ways that you can appoint multiple attorneys and so it depends on what you want them to do and how you want them to do it.
For example, if you’re appointing multiple attorneys, you should also decide whether your attorneys must make decisions together (ie, jointly) or they can make decisions without the other attorneys (ie, severally). If you appoint your attorneys jointly, you also need to decide whether their appointment is also conditional on the other attorneys or if one or more attorney is unable to be your attorney, whether the appointment of all attorneys is no longer valid.
Your attorney can do as much or as little as you like in terms of managing your legal and financial matters.
Your attorney’s powers are determined by the law and by what you specify in your power of attorney. You can grant specific powers or impose limitations on what your attorney can do for you. For example, do you want them to be able to access your bank accounts, or to buy or sell your property?
In New South Wales, your attorney can make decisions about your legal and financial matters but they can’t make decisions about your lifestyle, health or welfare. These decisions can only be made by you or your appointed guardian (see Enduring Guardianship).
It’s easy. You can find a standard template for the power of attorney on the internet – there are many versions available. However, you must use the right template and complete it properly so that it’s valid and it achieves what you want it to achieve.
Different states and different countries have different laws regarding the power of attorney, so make sure that whatever you find on the internet is appropriate. Many clients come to us with wrong documents (ie, templates from the US) which won’t be legally valid in New South Wales.
If you’re looking to appoint an attorney in New South Wales, you should call us first. We’ll prepare the power of attorney so that it’s legally valid and properly satisfies your requirements.
If you want to make an enduring power of attorney, there are other specific legal requirements that you must follow. This includes obtaining a certificate ‘prescribed witness’ to confirm that they’ve provided you with legal advice and that they’ve witnessed you signing the enduring power of attorney. This is necessary for an enduring power of attorney to still be legally valid after you’ve lost your mental capacity and without it, the enduring power of attorney won’t be legally valid. Lawyers in our office are prescribed witnesses for this purpose and so we’re able to assist you with the enduring power of attorney.
No, there are many online forms available for you to download – however, do you know if those forms are correct or relevant for what you want to do? There have been many times when clients have downloaded a form from the internet but not realised that it related to some foreign country and wouldn’t be valid in Australia.
If you need an Enduring Power of Attorney (ie, a power of attorney that’s still going to be valid if you lose your mental capacity) then you must to obtain advice from a lawyer before you can sign, you must sign in front of that lawyer, and that lawyer must provide you with a certificate confirming that they’ve given you advice about the Enduring Power of Attorney.
Making a power of attorney isn’t expensive – and to assist our many clients, we offer fixed priced legal fees for assisting you with the general power of attorney and the enduring power of attorney. But if cost is a concern, then you should consider that it’s a lot cheaper than not having one but needing one.
If you don’t have a power of attorney, and someone needs to assist you with your legal or financial matters, it either means nothing will happen (ie, they can’t do anything) or they’re going to have to go through an expensive, stressful and time-consuming legal process and procedure to obtain the authority to assist you with your legal and financial matters. Considering that the outcome of that legal process and procedure is not guaranteed, in hindsight, they (if you cannot) would then realise that the power of attorney would have come in handy.
There can be many reasons why you need to or you should make a power of attorney.
For example, some people travel and so feel they need to appoint an attorney to look after their affairs while they’re away. Some people want to prepare for the possibility of misfortune or accident. Others are concerned about their mental health, illness or disease (ie, due to age or family history) and they want to make sure that someone will be able to look after their financial matters when they cannot.
Making a power of attorney does not mean that you lose control over or give up control over your financial affairs. You appoint an attorney to help you look after your legal and financial matters. Your attorney have duties at law, must follow your instructions or otherwise act in your best interest. Appointing an attorney also is not final. You can change your mind should you wish and revoke the power of attorney (if you haven’t already lost your mental capacity).
You can revoke a power of attorney (ie, cancel the appointment).
Revoking a power of attorney is a formal process and so it needs to be done right. The revocation notice must be in writing and your attorney must receive a copy of the recovation notice. It’s important to follow these requirements to ensure that the power of attorney has been properly and legally revoked to avoid complications arising in the future.
If you want your attorney deal with real property/land on your behalf, then the power of attorney must be registered with the Land Titles Office. In addition to the cost of preparing the power of attorney, you need to also consider the registration cost and fees. Generally, we don’t recommend registering the power of attorney unless and until it’s needed to be used for land transactions.
If you don’t want your attorney to deal with real property/land on your behalf, then you don’t need to register the power of attorney. You should also be specific in the power of attorney to limit your attorney’s powers to not include the ability to deal with real property/land.
You can’t make a power of attorney if you are not an adult or if you have lost your mental capacity.
Although the power of attorney is the ‘ultimate’ legal authorisation, there are circumstances when it may not be practical or the best solution. For example, if you want someone to be able to access your bank accounts, consider making them a signatory to the account.
Also, before preparing a power of attorney, consider whether it’s necessary for your circumstances. These days, many transactions can be conducted remotely or electronically without requiring an attorney.
Most states in Australia have similar legislation that will recognise the power of attorney made in other states.
The standard power of attorney document that we use in New South Wales has a notation that it’s intended to only be used in New South Wales, especially because it references New South Wales legislation.
If you have any concerns about this, you should consult a lawyer in the relevant state or country in which you’re intending to use the power of attorney. We generally recommend that if you’re intending to use a power of attorney in another state or country then you should have the power of attorney prepared by a lawyer in that state or country to ensure that it complies with the relevant laws.
If your power of attorney was prepared overseas and is intended to be used overseas, we can still assist you with notary public services. Notary public services if you’re signing the document in Australia but it’s going to be used overseas.
Usually, we expect your attorney will keep the original power of attorney since they’re the one who’ll need to use it. Sometimes we keep the original document (for safekeeping and as a central repository for your personal documents) and make certified copies for your attorney to use. Otherwise, it’s up to you.
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