Power of Attorney

A Power of Attorney document allows you (the “Donor”) to appoint one or more people (your “attorneys”) to stand in your shoes and legally be in control of your assets and finances. An Enduring Power of Attorney is one which is witnessed by a solicitor and continues to apply even if you lose capacity. A Power of Attorney can be limited (such as to sell a particular property or to only operate for a certain period). A Power of Attorney can commence to apply immediately after being signed, or it can commence in other circumstances – such as when you have lost capacity to manage your own affairs.

Accidents can happen – so don’t delay getting a Power of Attorney document in place.

What is a Power of Attorney?

A power of attorney is a legal document made by the Principal allowing the Attorney to do things with the Principal’s money, bank accounts, shares, home and other assets. This can include spending and managing the Principal’s money, buying or selling shares for the Principal, or buying, selling, leasing or mortgaging the Principal’s house or any other real estate owned by the Principal.

The Powers of Attorney Act 2003 prescribes a form for Powers of Attorney which can be used for a general Power of Attorney or for an Enduring Power of Attorney. The form requires the Principal to make various choices about the powers the Attorney shall have and when the Attorney can exercise those powers.

Who can make a Power of Attorney?

Any person who is over the age of eighteen (18) years who is legally competent may make a power of attorney.  Having legal competence means that the person understands the significance and legal effect of the Power of Attorney.

Who can be an Attorney?

Any person over the age of eighteen (18) years who is able to assist the Principal with his or her money or property can be appointed as an Attorney (such as a relative, friend or professional adviser).

You should ask the person you want to appoint if they will agree to be your Attorney and look after your money and assets.

Can more than one Attorney be appointed?

A Principal may appoint more than one attorney. Where more than one Attorney is appointed, they can be appointed severally, or jointly and severally.

Jointly:

If a Principal appoints two or more Attorneys to act jointly, they must each agree on all decisions made under the Power of Attorney.

This is sometimes useful in limiting the possibility of misuse of power however it can be more administratively time consuming than a sole or several appointment.

Severally:

Where the appointment of Attorneys is several, only one Attorney need act at any one time, the consent of each of the other Attorneys is therefore not necessary.

Can the Attorney make personal decisions for the Principal?

A Power of Attorney only authorises an Attorney to act in relation to financial matters including those outlined above. A Power of Attorney does not permit the Attorney to make personal decisions for the Principal. An Attorney can not for example, make medical decisions on your behalf or sign a will or divorce application on your behalf.

If you want someone to make personal/health and lifestyle decisions you should appoint an Enduring Guardian under the Guardianship Act.

When will a Power of Attorney commence?

A Principal can decide if the Power of Attorney shall operate:

  • Immediately
  • On and from a certain date up to and including a certain date
  • When the Attorney considers that the Principal needs assistance managing his or her affairs
  • At some other time

When will a Power of Attorney terminate?

A Power of Attorney will terminate if the Principal loses mental capacity, unless it is an Enduring Power of Attorney and has been signed in front of a prescribed person such as a solicitor. A Power of Attorney can also terminate on a specified date provided in your Power of Attorney (for example the date you return from overseas), or if the Principal dies or revokes the Power of Attorney.

When should you make a Power of Attorney?

It is important to make a power of attorney before you need it.

This is particularly the case in relation to creating an Enduring Power of Attorney. Once you have lost capacity you cannot make a power of attorney because you must be able to fully understand what you are signing for a Power of Attorney to be effective.

What can your Attorney do?

Subject to any conditions or limitations in the Power of Attorney, generally speaking an Attorney may make any lawful decision that you could have made such as spending and managing your money, buying or selling shares for you, or buying, selling, leasing or mortgaging your house or any other real estate you own.

The Power of Attorney form allows you to impose limits or conditions on your Attorney’s authority.

Do you lose your rights to deal with your assets?

Appointing an Attorney does not mean that you lose your right to operate your bank account, deal with your assets or affect any other rights that you have. You can continue to look after your money and assets while you still have capacity to do so.

Can your Attorneys use your money for his or her own benefit?

Your Attorney should not use your money for their benefit, or for the benefit of any other person unless your Power of Attorney specifically allows the Attorney to do so.

What happens if there is a dispute?

If there is a dispute involving your Power of Attorney (such as a dispute concerning the Attorney’s authority) and the persons involved can not settle the dispute, the matter will need to be determined by the Guardianship Tribunal or the Supreme Court.

What are your Attorney’s obligations?

An Attorney assumes important duties and responsibilities. An Attorney is under a duty to act in the best interests of the Principal except as specifically authorised in the Power of Attorney.

Could you cancel a Power of Attorney in the future?

A power of attorney can be cancelled (that is revoked) at any time as long as you still have mental capacity.

A Power of Attorney is also revoked if you die and may be revoked:

  • if your Attorney resigns;
  • on the death of your Attorney;
  • on bankruptcy of your Attorney;
  • on the loss of legal capacity of your Attorney; or
  • by an order of a court (in the case of fraud, wrongdoing, loss of capacity etc).

dependent on the terms of your Power of Attorney in particular whether you have appointed one or more Attorneys jointly and severally.

Should you register your Power of Attorney?

You must register your Power of Attorney if your Attorney is going to sell, mortgage, lease or otherwise deal with any of your real estate in NSW. If your Attorney is not going to be dealing with your real estate at this time, it is not necessary to register it.

How can Bull, Son & Schmidt assist?

If you need any assistance contact one of our lawyers at lawyer@bullson.com.au or call 02 9439 5299 for a no-obligation discussion and for expert legal advice..