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Admission Help | Power of Attorney
1. What is a power of attorney?
In NSW, it is a legal document that appoints one person (the attorney) to act on behalf of another (the principal or donor) in relation to their property and financial affairs. For example, the appointed attorney can buy and sell property and operate your bank accounts. It does not allow anyone to make medical or life decisions on your behalf. The attorney is someone you trust - usually a family member or close friend. You can make either an ordinary or enduring power of attorney. An ordinary power of attorney ceases to have effect if you lose the capability to make financial decisions. An enduring power of attorney continues to have effect after you lose capability to make financial decisions.2. Who can make a power of attorney?
Anyone over 18 who wants to and is capable of understanding the nature and effect of the document. Some adults with a disability may be capable of doing this. If their capability is in doubt, an appropriate professional should assess the person's understanding.3. Why make an ordinary power of attorney?
You may want to make an ordinary power of attorney for a limited time if you:– are going overseas or interstate
– are going into hospital
– are physically unable to look after your affairs
– want something dealt with in another part of the country
Remember, an ordinary power of attorney has no effect if you lose capability to manage your own affairs.
4. Why make an enduring power of attorney?
Because it will continue to have effect even if you lose capability, for example if you have a stroke or are injured in a car accident. Making an enduring power of attorney allows you to choose who you want to manage your financial affairs if you lose the capability to do this for yourself. It is a cheap and easy alternative to other forms of financial management such as a financial management order under the Protected Estates Act.5. Who should I appoint as my attorney?
You will need to choose a person who is trustworthy and responsible enough to manage your finances. Unless there are special conditions, your attorney has power to dispose of your assets. Before you appoint someone you should be sure that they will do all the things you want. Your attorney is legally bound to carry out the written instructions in the power and any other instructions you may give while you are of sound mind.
The courts can intervene if your attorney acts dishonestly or improperly, but this can be expensive and may be hard to prove so be careful about choosing your attorney. You can appoint the Public Trustee or trustee company, but charges are applied. You should contact these bodies if you wish to appoint them. You can appoint more than one attorney but you should choose people who can coordinate well. You will need to see a solicitor or chamber magistrate to decide whether you want your attorneys to act jointly (together) or severally (separately).
6. Do I lose my rights if I make an enduring power of attorney?
When you make an enduring power of attorney, you are giving someone else the right to make financial decisions for you. It is effective as soon as it is signed and certified but you may tell your attorney not to use the power until you say so or until you become incapable.Note If you keep the power of attorney document in your possession, it cannot be used against your wishes. A power of attorney can be completely general. This is what most people choose to do but you can limit the power in any way you like, such as allowing the attorney to pay only certain kinds of bills or sell your house, or limiting the time the power will operate. You should see a solicitor if you want to put limits or conditions on your attorney.
7. How can I make an enduring power of attorney?
You can use the form attached or use a form available from legal stationers (listed in Yellow Pages under "Legal Stationery") and many newsagents. A solicitor, barrister or clerk of the local court must explain it to you before you sign it. That person must sign a certificate on the form. Clause 2 of the form allows your attorney to do things that benefit him or her. This is necessary if, for example, your attorney is financially dependent on you. If you do not want your attorney to benefit, you should delete clause 2.8. Do I need to register my power of attorney?
Powers of attorney can be registered at Land & Property Information NSW, Queens Square, Sydney, but in some cases this is not necessary. The advantages of registering your power of attorney are that it will be:
– on record as a public document
– safe from loss or destruction
– more easily accepted as evidence that your attorney can deal
with your property and financial affairs
Your power of attorney must be registered if you want your attorney to sell, mortgage or in some cases, lease your land or to deal with shares. To register a power of attorney you should take the completed form to Land & Property Information NSW. A fee applies. Their office will keep an official copy of your power of attorney. The original will be returned to you stamped with a registration number. Your attorney should use this number when signing on your behalf.
9. How long will my power of attorney last?
Until you notify your attorney that the power has ceased or your attorney notifies you that they will no longer act under the power. It also ceases if either of you becomes bankrupt or dies. It is advisable to review your power of attorney every three to five years as circumstances can change.10. Can I change my mind?
You can cancel your power of attorney at any time as long as you are of sound mind. Make sure your attorney knows that you are cancelling it and that you destroy the document. You can tell your attorney in person, over the phone or in writing. It is best to do it in writing so that your intention is clear to everyone, especially if you have registered it with Land and Property Information NSW.11. Where can I get legal assistance?
Community Legal Centres - Some community legal centres will assist you for free or at low cost.
Private Solicitors - Many private solicitors will prepare a power of attorney for less than $100.
The Public Trustee - The Public Trustee will prepare a power of attorney at no cost if they are appointed as the attorney.
Chamber Magistrates - Chamber magistrates are at most local courts. The clerk of the local court can witness an enduring power of attorney. This service is free.
Guardianship Tribunal
2a Rowntree Street, Balmain NSW 2041
Postal Address
Locked Bag 9, Balmain NSW 2041
Phone (02) 9555 8500
Toll free 1800 463 928
TTY (02) 9552 8534
Fax (02) 9555 9049
Website: www.gt.nsw.gov.au
The information in this document is provided to help you plan ahead in relation to your property and financial affairs. It is not legal advice. If you decide to make a power of attorney, seek legal assistance.