Understanding Powers of Attorney in NSW

Different types of Power of Attorney

There are two types of Attorneys – General Attorneys and Enduring Attorneys.

A General Power of Attorney is usually given for a specific period of time. You may appoint an Attorney under this document if you are going into hospital and need a person to manage your affairs for a short time or for a particular purpose. However, once you lose capacity the General Power of Attorney ceases to operate. 

An Enduring Attorney can make decisions for the Principal after the Principal has lost the capacity to make decisions for themselves.

Your capacity is your ability to:

• Understand the facts
• Understand the main choices
• Weigh up the consequences of your choices
• Understand how consequences affect you and others
• Communicate your decision.

Your capacity to make different types of decisions can be affected or lost due to illness, disorders such as dementia, or impacts from an accident.

You must have an Enduring Power of Attorney in place for an Attorney to act after you have lost capacity. It is important to plan for the future and appoint your Enduring Attorney before you lose capacity.

You can choose for the Enduring Power of Attorney to start straight away or only when you have lost capacity. The Enduring Power of Attorney lasts until the end of the Principal’s life.

Decisions made by Attorneys

Attorneys in NSW can be appointed to make the following kinds of decisions:

• Financial – such as paying bills and other expenses
• Legal – making investments and selling or buying property.

Multiple Attorneys can be appointed to make decisions together, or to make different decisions.

Enduring Guardians are different to Attorneys. You appoint an Enduring Guardian to make lifestyle decisions such as access to support services, health care, and decisions about where and with whom you live and the medical treatment you receive. The Enduring Guardian fact sheet has more information on this.

The Attorney’s duties

The law requires Attorneys to observe the following duties:

• Make decisions that the Principal would have made – take into account the Principal’s wishes and preferences
• Manage the Principal’s affairs responsibly – act in their best interests and keep records
• Not mix money – avoid a conflict of interest
• Act with honesty and in good faith
• Work with other decision-makers
• Make decisions that are the least restrictive of the Principal’s freedom
• Encourage the Principal’s participation in decision-making, life and the community
• Protect the Principal from neglect, abuse or exploitation
• Act within the limits of their appointment – start date, powers, limitations.

Who to appoint as your Attorney

An Attorney must be 18 years old and have capacity to make the relevant decisions. They should be someone you trust who knows you well and knows what you like. As you are appointing someone to look after your financial and legal affairs, you should have confidence that the person or people that you are appointing has the ability to make sound decisions on your behalf. 

How to appoint your Attorney

To appoint one or more Attorneys, there is a form that needs to be completed that sets out:

• who you are appointing;
• what decisions you want them to make; and
• whether there are any decisions you don’t want them to make.

If you are appointing an Enduring Attorney, you will need to sign the form in front of a special witness, including:

• a lawyer
• an employee of NSW Trustee & Guardian
• a Registrar of the Local Court.

Your Attorney also needs to sign the form to accept their appointment.

You should give a copy of the signed Power of Attorney to your Attorney and also to your bank and any other financial institution you use. You should keep a list of who you gave a copy of your Power of Attorney to.

An example of the form you need to use to appoint an Attorney can be found at the NSW Land Registry Services website.

NSW Trustee & Guardian can make a Power of Attorney document for you at no cost if you receive the full Centrelink Age Pension. Otherwise, they can make one for you for a fee. NSW Trustee & Guardian is a government agency that helps people with:

• powers of attorney
• guardianship
• wills
• financial management
• deceased estates 
• trusts.

You can contact NSW Trustee & Guardian on 1300 109 290.

If you are worried that your Attorney is misusing the Power of Attorney or treating you badly, you can contact the NSW Ageing and Disability Commission on 1800 628 221. They can investigate and give you information or let you know who can help you.  

Cancelling a Power of Attorney

You can cancel a Power of Attorney at any time as long as you have the capacity to do so.

You need to send a letter to your Attorney to let them know you are cancelling their Power of Attorney. You should also tell anyone else you gave a copy of the Power of Attorney to.