A power of attorney is a document where a person (you) appoints another person (or people) to make decisions about your property or financial affairs and sign documents on your behalf. In this article, we look at what a power of attorney can do, and how you can appoint a power of attorney.
General v Enduring Powers of Attorney
You may have heard the term “enduring power of attorney”.
This is sometimes used to differentiate between a “general power of attorney”.
There is one main difference between these two documents. A general power of attorney is only effective while you have the mental capacity to do things for yourself. A general power of attorney is commonly used if a party is going overseas and needs to appoint someone to “take care of business” in their absence.
Comparatively, an enduring power of attorney will continue to operate if you lose mental capacity. For example, you are in a car accident and are, unfortunately, comatose or diagnosed with dementia and lose mental capacity. An enduring power of attorney continues to operate, and the person or people appointed as your enduring powers of attorney can make financial decisions and sign documents on your behalf.
What Can a Power of Attorney Do?
As set out above, your attorney can make financial decisions and sign documents on your behalf, as well as undertake the following types of actions:
- Use your bank accounts and withdraw money;
- Pay your bills;
- Buy or sell shares on your behalf; and
- Buy or sell property on your behalf – noting the power of attorney must be registered with the relevant State Government authority to sell real property/real estate.
No Lifestyle or Medical Decisions
An enduring power of attorney can only be used for financial powers.
It can not be used by someone else to make medical or lifestyle decisions for you.
Medical decisions and decisions about your day to day care, including lifestyle decisions, can only be made by someone who you have appointed as your enduring guardian.
You can appoint an enduring guardian by completing an “Appointment of Enduring Guardian” form in addition to an enduring power of attorney.
Do I Really Need an Enduring Power of Attorney?
An enduring power of attorney provides certainty and peace of mind.
You control your affairs, and you ensure that a person of your choice manages your financial affairs if you lack the mental capacity in the future.
Without an enduring power of attorney, the Guardianship Tribunal/ Protective Services Commissioner or the Supreme Court can appoint a financial manager to look after your affairs. Not only is this costly, they may appoint someone you do not want looking after you.
How Can I Appoint an Attorney?
It is recommended that you use the prescribed form available so that there is no barrier to registered the enduring power of attorney at LPI NSW if you need to register it to deal with land.
While you can complete the form yourself, it is advisable that you obtain a lawyer’s advice as certain parts of the form must be deleted, and you will need to select certain options. Under the Powers of Attorney Act 2003, a prescribed witness must also complete and sign the form if the power of attorney is to be enduring. You will also need first to have the document’s effects explained to ensure that it is enduring.
How Does an Enduring Power of Attorney End?
An enduring power of attorney ends on the earliest of the following occurrences:
- When you die;
- When your attorney dies (or one of your joint attorneys die); or
- If you revoke it.
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