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Who should I choose as my Attorney?

Posted by PW Lawyers on 30 April 2024
Who should I choose as my Attorney?

Choosing an attorney is a significant decision as this person will have the power to make important financial and legal decisions on your behalf. Some factors to consider when choosing an attorney include:

Trust: You should choose someone you trust to act in your best interests and to carry out your wishes.

Financial knowledge: The person should be responsible, organised and have some knowledge of financial matters or be willing to seek professional advice.

Availability and location: The person should be available and can afford to spare their time to act as your attorney. Furthermore, if the person lives close by to you, it would easier for them to manage your financial affairs as opposed to someone who is living interstate or overseas.

Age and health: If the person is significantly older than you or have health problems, they may not be the best choice as they may later become unable to act on your behalf.

Relationship with family members: If the person gets along reasonably well with your family members, this can help lessen the risk of disputes and disagreements.


Who can be an Attorney?

In New South Wales, the following can be appointed as a Power of Attorney:

1. Individuals: You can appoint any individual who is at least 18 years of age and has capacity to understand their obligations and responsibilities as an attorney. This person should be someone you trust implicitly as they will have the power to deal with your financial and legal affairs.

2.Trustee Companies: A trustee company can also be appointed as an attorney. This can be beneficial if you have complex financial affairs or if there is no suitable individual to appoint.

3. NSW Trustee and Guardian: The NSW Trustee and Guardian can be appointed as an attorney, particularly in situations where there is no suitable individual to appoint or if there is a need for an independent and impartial attorney. The NSW Trustee and Guardian will charge a fee for their service.

4. A Lawyer, accountant, or other qualified professionals: You can appoint a qualified professional who has experience in acting as attorney such as a lawyer or an accountant. If you appoint a professional as your attorney, they will charge a fee for their services.


Who cannot be an Attorney?

In New South Wales, the following individuals cannot be an attorney:

  1. A person who is under 18 years old.
  2.  A person who is bankrupt or insolvent
  3. A person who does not have the capacity to understand the nature and effect of the Power of Attorney document.
  4. A person who has been convicted in New South Wales or elsewhere of a criminal offence.
  5. A person who is a paid carer or a health provider for the principal. A paid carer does not include the principal’s spouse or relative.
  6. A person who is a residential service provider for the principal.


Furthermore, Part 1 Section 5 of the Power of Attorney Act 2003 (NSW) states that a person can no longer be a power of attorney if:

  1. The appointment of the attorney is revoked.
  2. The attorney renounces the position.
  3. The attorney dies.
  4. The attorney becomes bankrupt or is corporation that becomes dissolved.
  5. The attorney loses mental and physical capacity to continue to act as an attorney.


What kinds of decisions can be made by a Power of Attorney?

The types of decisions that an Attorney can make on your behalf can include, but are not limited to:

Buying or selling property: Your attorney can buy, sell, lease, mortgage or manage real estate on your behalf.

Managing financial affairs: This can include operating your bank accounts, paying your bills, investing your money, and managing your taxes.

Legal matters: Your attorney can represent you in legal proceedings, sign legal documents on your behalf, and make decisions related to some legal issues you may have.

Business decisions: If you own a business, your attorney can make decisions related to the operation of your business.

Gifts and donations: Your attorney can make gifts or donations on your behalf, and must be reasonable in the circumstances, taking into account your finances and the size of your estate.


What are the obligations of an Attorney?

An Attorney has the following obligations:

  1. Keep the principal's money and property separate from the attorney’s money and property.
  2. Keep accurate accounts and records of all dealings with the principal’s money and property. This can help to ensure transparency and accountability
  3. Not to use the principal’s property or money for their own benefit unless the principal has given their informed consent for this.
  4. Not to give gifts or confer benefits to others unless expressly authorised by the principal. If authorised, such gifts or benefits must be reasonable in the circumstances, taking into account the principal's finances and the size of their estate.
  5. Always act in the best interests of the principal.
  6. Always act honestly in all matters concerning the principal’s financial affairs.


What can a Power of Attorney not do?

Decisions which an Attorney cannot make includes the following:


1. Make financial decisions on behalf of the principal after their death. The Power of Attorney document ceases to be effective upon the death of the principal and the role as Attorney ends. When the principal dies and they have left a Will, the Will would specify who is to take over the responsibility of managing the finances and property. This person is called the Executor and Trustee.

2. Making a Will: An Attorney cannot make or alter a Will on behalf of the principal. It may be possible for an Attorney to make an application to the Court for a Will to be made or amended on behalf of the principal. In this case, the Court would make an Order for what is called a ‘Statutory Will’. However, the Court would only order a ‘Statutory Will’ if it finds that if the person had capacity, they would have made a Will with the same provisions or the same amendments as the ‘Statutory Will’.

3.Make decisions about the principal's health care and lifestyle. These decisions are typically covered by a document called an Appointment of Enduring Guardian , not a Power of Attorney

4. Voting: An Attorney cannot vote on behalf of the appointor in elections.

5. Consent to Marriage or Divorce: An Attorney cannot consent to a marriage or a divorce on behalf of the appointor.

6.  Adoption: An Attorney cannot make decisions about the adoption of children.


What happens if my Attorney dies before me or cannot continue with the role?

It is possible that the person whom you appoint to be your Attorney could die before you, lose mental capacity, become bankrupt, resign or otherwise be unable or unwilling to continue to act as your Attorney for the remainder of your lifetime. When this happens, the Power of Attorney document will cease to have effect as there is no one else appointed under the document who can step in to make decisions on your behalf. For this reason, you can also appoint a substitute Attorney to assume this role if your first choice of Attorney is unable or unwilling to act.


Can I revoke a Power of Attorney?

Yes, you can cancel your Power of Attorney in New South Wales. This process is known as revocation.

To revoke a Power of Attorney, you must have mental capacity at the time of revocation. This means you must have sound mind and memory. You must also be able to understand the nature and effect of the revocation.

The revocation should be in writing and should clearly state your intention to revoke the Power of Attorney. Once the revocation is in writing, it should be given to the attorney to inform them that they no longer have the authority to act on your behalf.

If you do not give notice to the attorney, then they would still be able to continue to use your former Power of Attorney and manage your property and money without your consent.

Other relevant third parties must also be notified of the Revocation. For example, if the Attorney was making withdrawals from your bank account, then the bank would have to be aware of the Revocation and that the Attorney is no longer authorised to access your bank account. Likewise, if the Power of Attorney was registered with the NSW Land Registry Services (NSWLRS) for property transactions, then the revocation needs to be registered with the NSWLRS.


What happens if I have a falling out with my current Attorney and I want to replace them with a new Attorney? Can I create a new Power of Attorney document appointing the new Attorney?

Yes, it is possible to create a new Power of Attorney at any time as long as you have mental capacity.

You must also ensure to revoke the previous Power of Attorney and notify the former Attorney of the Revocation in writing and request that they destroy their copy of the former Power of Attorney document if they have been provided with one. Once the new Power of Attorney has been created, you should notify any relevant parties, such as banks or other financial institutions, of the change.


Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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Author:PW Lawyers
Tags:Estate PlanningPower of Attorney