Power of Attorney

A Power of Attorney is a legal document that allows you to nominate another person to make decisions about your financial and legal affairs on your behalf. The appointment of a Power of Attorney is governed by the Power of Attorney Act 2003 (NSW) and the Power of Attorney Regulations 2016 (NSW). The person that makes the Power of Attorney is called the ‘Principal’ and the person who is authorised by the principal to manage their financial and legal affairs is called the ‘Attorney’.

A Power of Attorney can be made by any person over 18 years of age who has capacity to appoint an Attorney. This means that a person must be capable of understanding the nature and effect of a Power of Attorney at the time that the document is made. They must be able to make their own decisions and clearly communicate what those decisions are.

In New South Wales, there are two types of Powers of Attorney documents: A General Power of Attorney and an Enduring Power of Attorney.

General Power of Attorney: This document authorises an Attorney to make financial decisions on behalf of the principal during a specific period or event, such as when the principal is travelling interstate or overseas and needs an Attorney to manage their financial affairs at home. This document becomes invalid if the principal loses the ability to make their own decisions, which is when the principal loses mental capacity or they die.
Enduring Power of Attorney: This document authorises an Attorney to make legal and financial Affairs on behalf of the principal and can be effective even after the principal loses mental capacity. This is often used in planning for future incapacity, for example, if you are involved in a car accident and as a result sustain brain damage or you are in a coma, or through illness such as dementia. This type of Power of Attorney will only end when the principal dies, or if it is revoked by the principal while they still have mental capacity, or if it is revoked by a court or tribunal.

A general Power of Attorney document comes into effect once it is signed and witnessed. An Enduring Power of Attorney can come into effect once it is signed and witnessed, or at a time specified by the principal, such as when a Medical Practitioner considers the principal has lost mental capacity to manage their affairs.

You can revoke your Power of Attorney at any time while you are mentally capable, by notifying your Attorney in writing about the revocation. It is recommended that you notify institutions such as your bank that may have a copy of your Power of Attorney on record about the revocation.

At PW Lawyers we can:

Give you professional advice about your circumstances.
Give you advice about discussing your decisions with your family to avoid unnecessary conflict and stress.
Help you appoint a Power of Attorney.

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.