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What is an enduring power of attorney?

An enduring power of attorney signed by you empowers a person or persons chosen by you to manage your financial affairs when you are unable to do so for yourself. The person who you appoint and empower to make decisions on your behalf is called your “attorney”.

In NSW, the law on enduring powers of attorney is largely found in the Powers of Attorney Act 2003 (NSW).

An enduring power of attorney is an important and powerful legal document. A power of attorney gives the attorney the authority to buy and sell your real estate, shares and other assets, to operate your bank accounts, to spend your money on your behalf and to exercise many other powers. It is not to be used after you die.

An enduring power of attorney cannot be used for health or lifestyle decisions. You should appoint an enduring guardian under the Guardianship Act 1987 if you want a particular person to make those decisions. We provide the form for the appointment of an enduring guardian - here

Who can be your enduring attorney

An attorney can be a family member or friend or someone else who you trust.

An attorney must be 18 years of age or older.

An attorney should not be an insolvent person who is under administration.

You should not appoint any person who may have a conflict of interest between your affairs and their own.

You can appoint a trustee company, if you wish to.

Choosing your attorney

You can appoint one or more attorneys.

You can also appoint one or more additional persons to act as a back-up for your attorney, in case your usual attorney is ever unable or unwilling to act. This additional person is called a “substitute attorney”.

You can specify when and how your substitute attorney can act. If you do not specify any circumstances, a substitute attorney can only act:

  1. once your usual attorney is unable or unwilling to act
  2. if the appointment of your usual attorney is revoked (cancelled) because they are no longer eligible to be your attorney (for example, the attorney becomes your care worker or health provider)
  3. in the same way (that is, make the same types of decisions and make decisions in the same way) as the attorney they are acting in place of.

What decisions can your Attorney make?

The things that an attorney under an enduring power of attorney may do are set out in Part 2 of the Powers of Attorney Act 2003.

An enduring power of attorney cannot be used for health or lifestyle decisions. You should appoint an enduring guardian if you want a particular person to make those decisions.

The Powers of Attorney Act says that an enduring power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do.

An enduring power of attorney has effect subject to conditions or limitations specified in the document creating the power.

An enduring power of attorney does not authorise an attorney to do the following things for you:

  • make a will
  • make an enduring power of attorney
  • vote in elections
  • marry or divorce
  • make decisions about your children
  • do anything unlawful
  • exercise the power of attorney after your death.

Can you insert conditions on your attorney’s power?

Because it is possible that you might specify a condition that affects the validity of the power of attorney, we have not included a facility for you to do so. If you wish to include conditions, we recommend that you consult another solicitor to discuss the preparation of a conditional power of attorney document, or contact us about the manual preparation of such a document.

How can attorneys decide?

If you have chosen more than 1 attorney (including substitute attorneys), and if you provide for them to decide “jointly”, then they all must agree. If you have chosen more than 1 attorney and provide for them to act severally, then any one of them can make a decision. It is up to you to decide how you want your attorneys to decide.

Who can be a witness to an enduring power of attorney in NSW?

The signature of the enduring power of attorney must be witnessed by a prescribed witness. The power of attorney will not be valid unless it is properly witnessed by a prescribed witness.

The expression “prescribed witness” means:

  1. a registrar of the Local Court, or
  2. an Australian legal practitioner, (i.e., a solicitor or a barrister) or
  3. a licensee under the Conveyancers Licensing Act 2003, or an employee of the NSW Trustee and Guardian or a trustee company within the meaning of the Trustee Companies Act 1964, who has successfully completed a course of study approved by the Minister, by order published in the Gazette, for the purposes of this paragraph, or
  4. a legal practitioner duly qualified in a country other than Australia, instructed and employed independently of any legal practitioner appointed as an attorney under the instrument.

A person who has been appointed as an attorney may not be a prescribed witness.

Can LawOnline Witness and Certify the Document?

Yes, under the Covid Emergency Measures legislation, it is currently possible for the signing of an enduring power of attorney and enduring guardianship document to be witnessed by a prescribed witness, viewing the person who is signing the document by audio visual means. Advice can then also be given by the same means and the prescribed witness can then sign the necessary attestation and return the signed document to you electronically.

LawOnline’s solicitor is therefore currently able to witness and certify your signature of your enduring power of attorney or enduring guardianship document during a Zoom session. Our fee for doing that is $150.00 including GST. If you wish to arrange for us to advise and witness your signature and to give our certificate, please send us an email to support@lawonline.co so that we can make the necessary arrangements. You are, of course, free to make your own arrangements if you have access to a solicitor or to one of the other prescribed witnesses.

What happens when the form is filled out and signed

You do not have to submit or register this form anywhere. If the power is to be used in respect of an interest in land, then it should be registered with NSW Land Registry Services. You can also choose to register the enduring power of attorney voluntarily, if you wish to.

You need to complete it, make sure it is signed and witnessed properly, and then keep the original in a safe place. You should keep all pages of this form together at all times. You do not need to print and keep the “important information” section on the last 2 pages.

Each of the persons who you appoint as your enduring attorney must also sign the acceptance of the appointment in the place provided in the form.

Open Advice

Your Enduring Power of Attorney New South Wales

Personal

Personal Details

You will need to have a special type of witness to properly complete this document.

Attorney

Attorney

 


†This will terminate all of your appointments, including any substitutes who you have named.

Decisions

How attorneys decide





Authority

Authority that you give





Date

Commencement date



Charges

Professional charges




Generate

Generate Document

What you will need to have when you generate your document

  • A printer to print out the form. Even if you fill the form out on a computer, you will need to print it for signing.
  • A Prescribed Witness to certify and sign the form. for more information.
  • You can save the form and finish it later if you need to.

Signing the form (after it is filled out)

  • print out a sufficient number of copies so that you and each of your attorneys can have a signed original copy.
  • sign each copy of the form in front of a Prescribed Witness.
  • have your Prescribed Witness sign and date the form in front of you.
  • have the attorney or attorneys sign the statement of acceptance. The attorney’s signature does not need to be witnessed.