This page provides a plain-English overview of the legal processes involved in planning ahead, as well as links to local information. To get advice about your individual circumstances it is recommended that you consult with one of the agencies referred to below or a legal practitioner.
How do I legally appoint someone to make financial decisions on my behalf?
- You can do this by appointing someone as an attorney with a Power of Attorney document.
- There are two types of Power of Attorney – General and Enduring – and there are separate forms for each of these (see below).
General Power of Attorney vs Enduring Power of Attorney: what’s the difference?
A General Power of Attorney ceases to be valid if the person making it loses capacity (e.g. develops dementia), whereas an Enduring Power of Attorney remains valid even if the person loses capacity in the future.
- An Enduring Power of Attorney is the best one for people wanting to plan long-term and to cover themselves if they lose capacity in the future.
In an Enduring Power of Attorney, you can:
- nominate one or several people as attorneys
- specify if they need to act separately or together
- nominate one or several people to be substitute attorney/s – in case the original attorney can no longer act in this role
- specify when they can start acting (e.g. immediately, on a set date or only when you lose capacity)
- put specific conditions on how they carry out the role.
- An Enduring Power of Attorney needs to be witnessed by a lawyer, registrar of a local court, licensed conveyancer, NSW Trustee & Guardian employee or trustee company employee, and it must also be signed and witnessed by the person being appointed as attorney.
- An Enduring Power of Attorney only allows the nominated person to make financial decisions – not health or lifestyle decisions.
Completing and terminating a Power of Attorney
- You may want to get legal advice when completing an Enduring Power of Attorney, especially if your financial circumstances are not straightforward. You could get this from a private solicitor or trustee, a community legal centre or NSW Trustee & Guardian.
- There is no central register of people appointed as Enduring Power of Attorney in NSW, although the forms need to be registered with Land and Property Information NSW if the attorney is conducting any business to do with your property.
- You may terminate (or ‘revoke’) a power of attorney by serving a written notice on your attorney(s) stating that the power of attorney is revoked. Once informed of the revocation, your attorney(s) cannot continue to act. However, if you lose mental capacity you can no longer revoke this power of attorney. It is important to revoke a power of attorney which is no longer required whenever you make a new power of attorney.
Links to local resources
To view information about Power of Attorney on the NSW Planning Ahead Tools website, click here.
NSW Trustee & Guardian can be contacted here or by calling 1300 364 103.