FAQs

Power of Attorney

Please select from either list below the area in which you have questions:





Q:

What do I need to do to prepare a power of attorney?

A:

In NSW, the Power of Attorney Act 2003 has a prescribed form and process for the purpose of appointing someone as your attorney, whether as a general or enduring power of attorney.

 

You can obtain a copy of that on line or you can see a lawyer.

 

The decisions you will need to make when appointing someone as your attorney are:
Are you going to revoke any prior appointments?

Who will you appoint? Someone who has common sense and who you trust.

Will you appoint more than 1 person, in case something happens to one of them?

If you appoint more than 1 person, must they act together or can they act separately?

If you appoint more than 1 person, is their appointment substitutionary [their appointment depends on something happening to the others of them (eg death or disability)] or alternate [they can act immediately and separately from one another]?

When does the appointment start and end?

Does the appointment end if you lose your mental capacity through illness or accident? [ie will the appointment be an enduring appointment?]

Can the person you appoint use the appointment to give themselves a benefit?

Can the person you appoint use the appointment to give anyone else a benefit?

Can the person you appoint delegate their authority?

If the appointment is of an enduring power of attorney, it must be signed before a lawyer, barrister, clerk of the court (and others) and a required certificate given.

Q:

What happens if I don’t have a power of attorney and I lose my capacity?

A:

If you lose your mental capacity through accident or illness and you don’t have a power of attorney, no one has the legal capacity to deal with your assets and make financial decisions for you, including to sign documents on your behalf.

 

Your family may have a problem in conducting your financial and business affairs.

 

In addition, nothing can be bought or sold.

 

The only solution, if there is no power of attorney, is to apply to the relevant government department for appointment of a financial manager. This may be costly, inconvenient and not what you want.

Q:

What is an enduring power of attorney?

A:

An enduring power of attorney is a power of attorney that continues if you lose your mental capacity through illness or accident.

Q:

What is a general power of attorney?

A:

A general power of attorney is a power of attorney that does not continue if you lose your mental capacity through illness or accident. It is possible to give a general power but for limited purposes.

Q:

What is a power of attorney?

A:

A power of attorney is someone you appoint who then has the legal capacity to deal with your assets and make financial decisions for you, including to sign documents on your behalf.

 

A general power of attorney is one that does not continue if you lose your mental capacity through illness or accident. It is possible to give a general power but for limited purposes.

 

An enduring power of attorney continues if you lose your mental capacity through illness or accident.