Enduring Power of Attorney – NSW

Note: New temporary regulations permit witnessing via video-conference during COVID-19 pandemic.

What is an enduring power of attorney?

An instrument that is a power of attorney creates an enduring power of attorney if:

1️⃣ The instrument is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through the loss of mental capacity after the execution of the instrument;

2️⃣ The execution is witnessed by a prescribed witness; and

3️⃣ The prescribed witness signs the witness statement. The prescribed form for the enduring power of attorney notes that a power of attorney cannot be used for health or lifestyle decisions.

The legislation governing the creation of Enduring Powers of Attorney in New South Wales is:

The Powers of Attorney Act 2003 (NSW); and The Powers of Attorney Regulation 2016 (NSW).

The prescribed form for an enduring power of attorney is Form 2 Schedule 2 of the Powers of Attorney Regulation 2016 (NSW).

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