What is a Power of Attorney?
A Power of Attorney is a legal document that allows you to appoint and authorise a person to lawfully act on your behalf to deal with your money, bank accounts, shares, real estate and other financial matters. The person you appoint is called the ‘attorney’, however this does not mean that the person needs to be a solicitor or lawyer. They can be any person over 18 years of age such as a sibling, relative or any trusted professional adviser.
A Power of Attorney in NSW only authorises the attorney to act on your behalf in relation to financial matters and not in relation to medical matters. If you are seeking to have another person make medical decisions for you, you should appoint an Enduring Guardian.
A Power of Attorney may either be enduring or general.
Should you make a Power of Attorney?
You should make a Power of Attorney for times when you are unable to attend to any financial matters yourself. This may occur if for instance you are not in the country or you are confined to a hospital and unable to go to banks, government offices, real estate agencies or your accountant’s office to deal with your financial matters.
By using a Power of Attorney, the attorney you appoint will be able to attend to such matters on your behalf.
What type of Power of Attorney should you make?
There are two types of powers of attorney, a General Power of Attorney and an Enduring Power of Attorney.
1. GENERAL POWER OF ATTORNEY
A General Power of Attorney is generally used to give the attorney power to act on your behalf for a limited period of time (for example if you are overseas for several months) or if you require the attorney to deal only with certain matters (for example to sell or buy a property).
The advantage of a General Power of Attorney is that it can easily be tailored to meet your requirements.
An important characteristic of a General Power of Attorney to note is that it automatically terminates in the event that you lose mentally capacity.
A General Power of Attorney requires only your signature and for your signature to be witnessed by a person over the age of 18 years. It is not necessary for the attorney to sign the Power of Attorney.
2. ENDURING POWER OF ATTORNEY
Unlike a General Power of Attorney, an Enduring Power of Attorney continues to operate in the event that you lose mental capacity. It is generally used if you wish for your attorney to make financial decisions for you in the long term.
Preparing an Enduring Power of Attorney is useful as you may be in a position in the future where you are unable to take care of things yourself due to loss of mental capacity, physical injury or any other unforeseen accident. Similar to a General Power of Attorney, an Enduring Power of Attorney can also be easily tailored to meet your requirements.
It is important to note that the appointment of an attorney must be made before you lose mental capacity and that you cannot appoint someone once you have lost mental capacity.
Unlike a General Power of Attorney, an Enduring Power of Attorney requires that the appointed attorney consent to the appointment and sign the Enduring Power of Attorney for it to come in to effect. In addition, your signature must be witnessed by a prescribed witness (generally a solicitor) certifying that they explained the Enduring Power of Attorney to you and that you appeared to have capacity to understand its effects.
Who can you appoint as your attorney?
You can appoint anyone over the age of 18 years to act as your attorney. It can be a close family member or simply a friend that you trust. You should appoint someone only after asking them whether they agree to be your attorney and look after your financial matters. Remember, only appoint a person who you trust whole heartedly.
You can appoint more than one attorney to act on your behalf. They can act either:
jointly: all attorneys must sign
severally: only one attorney is required to sign
jointly and severally: any or all attorneys can sign
What can your attorney do?
When preparing a Power of Attorney, you are able to impose certain conditions or limits on what your attorney can do. So long as your attorney is acting within your instructions, your attorney can do all the things (except for a few exceptions) you can do with your own financial and legal affairs.
It is very important to note that anything your attorney does for you under the Power of Attorney automatically binds you.
What are your attorney’s duties?
Your attorney has a duty to always act according to your instructions. Unless you instruct your attorney otherwise, your attorney must:
Act in your best interest;
Ensure that your money and assets are kept separate from their money and assets;
Maintain good records showing how they handled your money and assets;
Not give unauthorised gifts; and
Not use your money or assets for their own benefit.
Can you cancel a Power of Attorney?
Yes. You can cancel a Power of Attorney at any time given that you still have mental capacity. You can cancel the Power of Attorney by simply writing a letter to your attorney.
A Power of Attorney can also be cancelled if you or the attorney die, your attorney decides to no longer act for you, your attorney is bankrupt and if your attorney loses mental capacity.
When you cancel a Power of Attorney, it is common practice that you advise your bank, account, broker and anyone else you may expect to act pursuant to the Power of Attorney.
Is it a requirement to register the Power of Attorney?
It is not a requirement to register the Power of Attorney unless your attorney is going to be dealing with and signing documents in relation to real estate.
The Power of Attorney can be registered with the Land and Property Information Office.
The advantage of registering the Power of Attorney is that it will be safe from loss or destruction and more easily accepted that your attorney actually has the powers to deal with your financial and legal affairs.