NSW Enduring Power of Attorney

In NSW there are two types of Power of Attorney:

1️⃣  General (Non-Enduring) Power of Attorney [publicly available for free ➲ download here]; and

2️⃣  Enduring Power of Attorney [scroll down to the bottom of this page to purchase online].

They are for practical purposes the same, with one crucial difference.

A General (Non-Enduring) Power of Attorney automatically ceases if you lose your legal mental capacity after its execution.

If you want the Power of Attorney to continue after you lose your legal mental capacity you must use an Enduring Power of Attorney.

Who can you appoint as your Attorney/s?

You need to consider that an Attorney will have enormous power over your financial + legal affairs.

You can appoint anyone you will agree to take on the responsibility.

You should choose a person whom you can trust and who will manage your finances in a responsible way.

Usually one or more family members or close friends are appointed as Powers of Attorney, alternatively you may prefer to approach the NSW Trustee And Guardian or a private trustee company or lawyer to act as your attorneys, but fees will apply.

How to create a valid Enduring Power of Attorney [EPOA]?

An instrument creates an Enduring Power of Attorney in NSW 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 Person; and

3️⃣ The Prescribed Person signs the Witness Statement.

The prescribed form for the NSW Enduring Power of Attorney notes that a Power of Attorney cannot be used for health or lifestyle decisions.

For these decisions we recommend you use NSW Advance Care Directive (Medical) + our NSW Enduring Guardianship document.

Do I need to get legal advice before I sign my POA?

Yes. A Power of Attorney [whether a GPOA or EPOA] is an important + powerful legal document.

You should get legal advice before you sign it.

Does a lawyer need to be involved in witnessing my EPOA?

No, a lawyer is not essential.

➲ In order for your EPOA to be valid, you do need to use a Prescribed Person as a witness.

➲ Your lawyer can act as your Prescribed Person.

What does a Prescribed Person need to attest they have done in the Witness Statement?

1️⃣  Explained the effect of the Enduring Power of Attorney [EPOA] to you before you sign it; and

2️⃣  Believe you understand the effect of the EPOA.

Who can act as a Prescribed Person?

Section 19(2) of the Powers of Attorney Act 2003 (NSW) defines a ‘Prescribed Person’ as:

➲ A barrister or solicitor of any State or Territory of the Commonwealth;

➲ A legal practitioner duly qualified in a country other than Australia;

➲ A licensed conveyancer under the Conveyancers Licensing Act 2003 (NSW);

➲ A registrar of the Local Court;

➲ An employee of the NSW Trustee & Guardian or a trustee company registered under the Trustee Companies Act 1964 (NSW) who has completed a course of study approved for this purpose; or

➲ Any other person prescribed by regulation for the purposes of Section 19(2).

Note: At the time of writing this document overview no other class of persons has been prescribed by regulation for the purposes of Section 19(2).

Do I have to register my Power of Attorney?

No, registration is not essential.

➲ In order for your Attorney to sell, mortgage, lease more than 3 years, or otherwise deal with your real estate registration with the NSW Titles Office is required.

It is advisable to register your GPOA or EPOA so that it is:

➲ On record as a public document;

➲ Safe from loss or destruction; and

➲ More easily accepted as evidence that your Attorney is allowed to deal with your legal + financial affairs.

GPOA v. EPOA

After you have signed a General (Non-Enduring) Power of Attorney you still continue to have the authority to deal with your own legal + financial affairs as long as you retain legal mental capacity.

It is at the point of time when you lose your legal mental capacity where the crucial difference between the two types of Power of Attorney becomes apparent.

Important: Once you have lost your legal mental capacity you have no ability to create another Power of Attorney or any other legal document.

The question of legal mental capacity is a complex one.

Once legal mental capacity is lost there is still potential it might return, but it is also possible it may not.

In an abundance of caution ➲ EPOA + Advance Care Directive (Medical) + EG are all strongly recommended

We recommended that as part of your Estate Planning process, both an EPOA + Advance Care Directive (Medical) + an Enduring Guardianship [EG] be created.

Ideally this will be at a time when there is no question regarding your legal mental capacity.

This ensures that in case of something unforeseen happening to you ➲ i.e., a stroke or accident; there will be at least one other person who can quickly + easily look after your money + property.

If not already in place, both an Enduring Power of Attorney + Enduring Guardianship can be appointed as soon as possible after signs/diagnosis of dementia (this is strongly advised).

What happens if you lose legal mental capacity + you don't have an EPOA?

A special application for financial management orders would need to be made to a Court or NSW Civil + Administrative Tribunal [NCAT] to appoint someone as your financial manager. NCAT may appoint an independent public official called the ‘Protective Commissioner’.

Note: Fees will apply which will be paid on your behalf using your money. As you would have lost your legal mental capacity you would not be able to do this yourself and would have no control over the process or who is appointed.

Revocation of Power of Attorney

If your Attorney does not follow your directions or does not act in your best interest, you should revoke the Power of Attorney.

You or someone on your behalf should inform the attorney of the revocation, preferably in writing.

The Attorney must then immediately cease to act as your Attorney.

If anyone else, such as a bank, has been advised about the Power of Attorney, that person or entity should also be informed of the revocation.

Note: Making a new Power of Attorney does not automatically revoke earlier Powers of Attorney.

Each earlier Power of Attorney must be specifically revoked.

Enabling NSW Legislation

The relevant legislation governing the creation of 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).

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

[Lawyer-Assisted] Supporting Resources:

➲  EPOA Risks: Signing away your financial life can be dangerous. Here's how to minimise the risks. Choice Article (last updated 02 March 2017);

➲  Guidelines for Solicitors preparing an Enduring Power of Attorney;

➲  Powers of Attorney Act 2003: A Commentary compiled by the Elder Law + Succession Committee (last updated, July 2014).

Optional Extras:

➲ 💡 Trax Print Fraud + Litigation Prevention Technology $22.

Safe Storage:

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FAQ

How do I best provide for the care of my Pet/s if I lose capacity?

Long-term Care for your Pet/s …

✅ If you lose capacity

Formal Arrangements

Plan A ➲ EPOA

Ensure you are able to keep your Pet/s with you [as long as possible] by providing specific written directions ahead of time and including financial provision for the support of yourself, your Pet/s long-term care, maintenance, health + insurance + potentially your Pet/s carer in your Enduring Power of Attorney [EPOA] / NT Advance Person Plan.

Informal Arrangements

Plan B ➲ Friends or Family

Plan C ➲ RSPCA

Think of setting up an informal arrangement with the RSPCA as an Insurance Policy just in case for some reason your friends or family circumstances change and they are no longer in a suitable position to take on the responsibility for long-term care of your Pet/s.

RSPCA Home Ever After / Pet Bequest / Pet Legacy program

Further Reading:

For a more detailed discussion please refer to our blog article “Your Pets are Family: Providing Emergency + Long-Term Care for your Furry, Fluffy or Fine-Feathered Friends!"  by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

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