It is important to understand that a Power of Attorney gives authority to the appointed Attorney to act on your behalf in relation to your legal and financial affairs. It will not give authority to another to make decisions for you relating to lifestyle decisions. An Appointment of an Enduring Guardian will enable the appointed guardian to make personal and lifestyle decisions for you when you are incapable of doing so yourself.
There are specific elements of information that are required to ensure a POA document is valid and effective in New South Wales. Power of Attorney (POA) is a legal document that allows one person to appoint another person to act on their behalf in various legal, financial, or personal matters.
In New South Wales there are two types of POA documents:
- Enduring Power of Attorney allows you to appoint a person/s to manage financial and legal decisions on your behalf and continues even if you lose the ability to make decisions for yourself
- General Power of Attorney allows you to appoint a person/s to manage financial and legal decisions on your behalf, only while you have the ability to make your own decisions
What is a Power of Attorney?
A Power of Attorney (POA) is a legal document under which one person (the principal) appoints another person to act on their behalf in various legal and financial matters (the attorney).
In New South Wales there are two types of POAs:
- Enduring Power of Attorney which allows you to appoint a person/s to manage financial and legal decisions on your behalf and continues even if you lose the ability to make decisions for yourself
- General Power of Attorney allows you to appoint a person/s to manage financial and legal decisions on your behalf, only while you have the ability to make your own decisions
Each POA can be limited to certain functions and powers or can authorise additional functions and powers.
What should be included in a Power of Attorney in NSW?
There are specific elements that are required to ensure a POA document is valid and effective in New South Wales:
Identification of Parties:
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- The document should clearly identify the principal (the person granting the power) and the agent (the person receiving the authority).
Type of Power of Attorney:
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- Specify the type of POA, whether it is a General Power of Attorney or an Enduring Power of Attorney
Scope of Authority:
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- It is important to clearly outline the powers and responsibilities granted to the agent, including any conditions or limitations. Specify whether it’s a general or specific authority and describe the tasks or decisions the attorney is authorised to make. This can include the following powers:
- to give gifts;
- to recover expenses incurred in operating the power of attorney;
- to make certain nominations of beneficiaries under the Principal’s superannuation policy;
- to deal with digital rights;
- to provide financial support for a spouse;
- to act in the Principal’s capacity as director of a company;
- to sell, purchase, or mortgage real estate
- to operate bank accounts;
- to take, maintain and settle legal proceedings.
- It is important to clearly outline the powers and responsibilities granted to the agent, including any conditions or limitations. Specify whether it’s a general or specific authority and describe the tasks or decisions the attorney is authorised to make. This can include the following powers:
When the power is to come into operation:
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- It is important to clearly provide when the POA commences to operate. This needs to be specified without any ambiguity. An Enduring Power of Attorney is intended to remain in effect even if the principal becomes incapacitated while a general POA becomes invalid if the principal becomes incapacitated.
Execution Date:
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- Include the date when the document is signed. This is essential for record-keeping and validation.
Witnesses:
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- The POA document requires a prescribed witness’s signature. This is usually the solicitor who is present when the principal signs the document.
Certificate under section 19 of the Powers of Attorney Act 2003:
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- This provides for the creation of an enduring POA and must be signed by a solicitor upon the principal signing
Agent’s Acceptance:
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- By way of signature, the attorney should acknowledge their acceptance of the appointment
Legal Requirements:
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- Ensure that the POA complies with all relevant laws and regulations in NSW, which may change over time. Consult with a legal professional to be sure.
Registration, if applicable:
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- If the attorney is signing certain documents that affect real estate, the POA must be registered at NSW Land Registry Services
Keep in mind that while a POA grants significant authority to the attorney, it should always be created with the principal’s best interests in mind. It is advisable to consult with a legal professional who can provide guidance and ensure that the document meets all legal requirements and addresses the principal’s specific needs and concerns. Phone us on (02) 4050 0330 or enquire online.
