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What is a Power of Attorney?

Elderly woman watering plants

A Power of Attorney is a legal document that gives a person, or trustee organisation the legal authority to act for you to manage your assets and make financial and legal decisions on your behalf.

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Definitions

assets

All of a person’s property including real and personal e.g. bank accounts, realty, shares in companies, cash etc.

There are two types of Power of Attorney documents

 

Enduring Power of Attorney A legal document that allows you to appoint a person(s) to manage financial and legal decisions on your behalf and continues even if you lose the ability to make decisions for yourself.
General Power of Attorney A legal document that allows you to appoint a person(s) to manage financial and legal decisions on your behalf, only while you have the ability to make your own decisions.

Why do I need a Power of Attorney?

It is a good idea to have a Power of Attorney in place in case something happens to you and you suffer from temporary or permanent loss of capacity.

This could happen at any time because of illness, injury or disability.

If you do not have a Power of Attorney in place, a court or tribunal may appoint someone to manage your finances.

You can also appoint an attorney to pay your bills and manage your finances for many reasons, including if:

  • you're travelling or living abroad

  • you temporarily or permanently lose capacity through illness, injury or disability

  • you wish to have someone else with experience to manage your finances.

What can my Power of Attorney do?

You can use a Power of Attorney for almost any financial purpose including:

  • signing legally binding documents

  • operating bank accounts

  • paying bills

  • buying and selling real estate

  • managing investments

  • collecting rent.

In NSW, an attorney can only make financial and legal decisions.

You can appoint an Enduring Guardian to make healthcare, lifestyle and medical decisions for you. 

Learn more about Enduring Guardianship 

We can help you make your Power of Attorney

We’re here to help you.

Request an appointment to make your Power of Attorney with us.

During your appointment we will guide you through every step, including:

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Who should I choose as my attorney?

It is important to carefully consider who you appoint as your attorney as they are in a position of trust and responsibility.

Ensure that they have the time and ability to take on the role and discuss your intentions with them as they need to agree to take on the role.

Your attorney can be a:

  • family member

  • close friend

  • solicitor

  • NSW Trustee and Guardian or a trustee organisation.

Your attorney is legally required to act in your best interests, so choose a person or organisation that: 

  • will not do anything that would pose a conflict (such as benefit themselves from using your money)

  • has financial skills and the ability to deal with issues such as tax and financial planning

  • respects your views, wishes and existing relationships, values and culture

  • respects your right to confidentiality

  • acts according to any limits or conditions placed on their authority

  • keeps accurate records of all dealings and transactions

  • keeps their finances and money separate from yours

  • are of the age and capability to manage your affairs.

Definitions

tribunal

A legal forum to make and review decisions and settle conflicts. Tribunals are like courts but are usually more specialised and less formal.

Frequently asked questions

I have a Will, is that sufficient?

Your Will sets out your wishes for distribution of your assets (amongst other things) after your death.

A Power of Attorney lets you appoint someone who can manage your financial affairs on your behalf while you are alive. It is therefore important that you have both an Enduring Power of Attorney and a Will.

Who can witness a Power of Attorney?

The requirements for witnessing a Power of Attorney differ depending on the type of Power of Attorney; whether it is general or enduring.  

A General Power of Attorney (which ceases to be effective if you lose your mental capacity after it is executed) can be witnessed by anyone over the age of 18 years who is not an attorney appointed under the document.

There are more specific requirements for witnessing an Enduring Power of Attorney (which continues to be effective if you lose your mental capacity after it has been executed). An Enduring Power of Attorney can only be witnessed by the following:

  • A 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,
  • A Legal practitioner qualified in a country other than Australia; or
  • An employee of NSW Trustee and Guardian or a Private Trustee company who has completed an approved course under the Powers of Attorney Act.

At the end of the Enduring Power of Attorney form there is certificate that must be completed by the witness. The certificate states that the witness:

  • explained the effect of the Power of Attorney directly to you before it was signed
  • was satisfied that you appeared to understand the effect of the Power of Attorney
  • is not an attorney appointed under the Power of Attorney

If the Witness has doubts about your ability to understand what you are signing, they are required to take reasonable steps to confirm your mental capacity.

Accredited employees at NSW Trustee and Guardian can witness an Enduring Power of Attorney.

However, NSW Trustee and Guardian staff will only witness these documents when the document has been prepared by NSW Trustee and Guardian. NSW Trustee and Guardian staff are unable to witness documents that have been prepared elsewhere.  

NSW Trustee and Guardian branches have staff qualified to act as witnesses, ensuring that using NSW Trustee and Guardian’s Power of Attorney service is simple and professional.

Can an interstate Enduring Power of Attorney be used in NSW?

If an Enduring Power of Attorney was made in another State or Territory, it will be recognised in NSW provided that it is valid under the laws of the State or Territory it was made in and the powers could validly be given in NSW.
 

An Enduring Power of Attorney that is made in NSW may be valid in another State or Territory of Australia depending on interstate laws and recognition procedures.
 

An Enduring Power of Attorney made overseas is not recognised in NSW.

Do I need to register my Power of Attorney?

If you want your attorney to deal with any real estate you own in NSW, then the Power of Attorney document must be registered with the NSW Land Registry Services.

Otherwise, there is no requirement for your Power of Attorney to be registered. If you choose to register your Power of Attorney it:

  • Will be on record as a public document;

  • May be more easily accepted as evidence that your attorney has authority to deal with your property or financial affairs.

After registration, your original document will be returned to you with a registration number stamped on it.

Your attorney should use this number when signing any documents on your behalf.

There is a fee charged by NSW Land Registry Services for registering your Power of Attorney.

If your Power of Attorney is registered and you later revoke it (cancel it), you should register the revocation.