Making a power of attorney

Anyone over 18 can make a power of attorney as long as they understand what they are signing (that is, if they have mental capacity). A person with a mild intellectual disability or in the early stages of dementia may still be able to make a power of attorney if they have mental capacity at the time the document is made. If their capacity is in doubt, an assessment of their understanding needs to be made by an appropriate person, such as a doctor, psychologist or psychiatrist.

No. As long as you are able to make your own decisions you still have authority to deal with your property and money. You can make it clear in the document that you only want your attorney’s power to start if and when you become incapable of making your own decisions.

No. A power of attorney only operates while you are alive. It is automatically cancelled when you die.

If you lose capacity and haven’t made an enduring power of attorney there will be nobody with legal authority to manage or make decisions about your property and finances. Your family may have difficulty accessing your bank account to pay your bills. If your home needs to be sold (for example, to pay for you to move into residential aged care) only someone with your power of attorney will be able to do this.

A relative or another person may need to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court to have a financial manager appointed for you. This may not be the person you would have chosen.

A solicitor or the NSW Trustee and Guardian can prepare a power of attorney for you. Or you can use a form available from NCAT or NSW Land Registry Services, or you can purchase a ‘Prepare your own Enduring Power of Attorney and Enduring Guardianship Pack’, which are available at post offices.

The form for an enduring power of attorney is different to the one for a general power of attorney.The form must be witnessed by a barrister, solicitor, registrar of the Local Court, an employee of the NSW Trustee and Guardian or trustee company, a qualified overseas lawyer or a licenced conveyancer. That person must also sign a certificate stating that they have explained the document to you and that you understood its effect.

The person you appoint as your attorney must also sign the form to accept their appointment before they can act as attorney.

Because your attorney will be able to do anything you could do with your property and money, you should choose someone who is suitable, willing to take on this role, and who you trust to make decisions for you in your best interests.

You can appoint more than one person as your attorney. However, you should choose people who are able to work together.

If you appoint more than one person you can appoint them so they can only make decisions together (jointly) or individually (severally). You should talk to a lawyer about what would be best in your situation. It is a good idea to appoint another person as a ‘substitute’ to act in case the other(s) can no longer do so (e.g. they lose capacity or die).

If you do not know anyone you consider to be suitable you can appoint the NSW Trustee and Guardian as your attorney. They will charge a set fee to draw up a Power of Attorney unless you are on a full Centrelink Age Pension. If they do have to act as your attorney they will charge for their services.

You can decide how much power or authority to give your attorney. You can give your attorney very wide powers to do anything you could do with your money or property, or you might want to limit your attorney’s power to do something specific, such as paying certain kinds of bills or selling your house.

Your attorney must:

• avoid conflicts between their interests and yours
• maintain proper records of their dealings with your money and property
• keep your money and property separate from theirs
• act in your best interest at all times
• not pay or give gifts or benefits to themselves or other people using your finances, unless you specifically say they can (although they can claim out-of-pocket expenses directly connected with carrying out the power of attorney duties)

While you still have capacity you can cancel (revoke) your power of attorney. If you have lost capacity and your attorney acts dishonestly or improperly or is not acting in your best interests, it may be possible for the Guardianship Division of NCAT or the Supreme Court to do something about it.

Someone else who is concerned about your welfare would need to apply to NCAT or Court to have the attorney’s actions looked at and possibly have them removed as your attorney. This can be time-consuming and stressful and Supreme Court action is expensive, which is why it is so important to choose the right person in the first place.

You can cancel your power of attorney at any time as long as you have mental capacity. You must let your attorney know that you are cancelling the power of attorney. It is best to do this in writing so that your intention is clear to everyone. If the attorney is not told, they can continue to deal with your finances and property and you will be liable for any actions they take.

If your power of attorney will be dealing with your real estate (ie to sell, mortgage or lease a property) then your power of attorney must be registered with the NSW Land Registry Services (NSWLRS). There is a registration fee.

There are 3 ways to lodge your power of attorney with the NSWLRS.

• Your solicitor can lodge it electronically via PEXA.
• You or your attorney can take the completed form to the NSWLRSoffice at Level 30, 175 Liverpool St Sydney NSW 2000 (8.30am-4.30pm, Mon -Fri).
• By post if you are outside the Sydney metropolitan area.

 Even if you don’t need to register your power of attorney you may still choose to do so. The advantages are that it will then be:

• on record as a public document
• safe from loss or destruction, or
• more easily accepted as evidence that your attorney has authority todeal with your property and financial affairs.

If your enduring power of attorney is registered but you later revoke (cancel) it, you can use a ‘Revocation of power of attorney’ form to do this, available from the NSWLRS. You should also register the revocation.

Each state and territory has its own laws on enduring powers of attorney. If an enduring power of attorney was made in another Australian state or territory then, provided it complies with the legal requirements of that state or territory, it will be recognised in NSW. However you should get legal advice about this.

Powers of attorney which are made overseas can’t be used in NSW.

If you want your attorney to be able to use your NSW enduring power of attorney in another state or territory or overseas, you should make enquiries about what the requirements are in that state, territory or country. They all have different laws about powers of attorney.