Power of Attorney Services
Planning for the future often involves making important decisions about who will manage your affairs if you’re unable to do so. At Sapphire Legal, our wills and estates lawyers are here to guide you through the process of appointing a Power of Attorney, ensuring you feel secure and informed about your options.
Whether you’re preparing for the unexpected or managing current responsibilities, we’re here to help.
How We Help You Through the Process
Understanding the Purpose of a Power of Attorney
A Power of Attorney is a legal document that allows you to appoint someone to make financial and legal decisions on your behalf. This trusted individual, known as your Attorney, can help manage your affairs when you’re unable to do so yourself, ensuring your interests are protected.
Our team at Sapphire Legal can help you decide on the right type of Power of Attorney for your needs, and guide you through the appointment process with confidence.
How Sapphire Legal Can Assist with Power of Attorney Matters
Types of Power of Attorney: Choosing the Right Option
There are two main types of Power of Attorney to consider, each serving a unique purpose based on your needs:
General Power of Attorney
Enduring Power of Attorney
Our team can help you determine which option is most appropriate for your situation, providing guidance on the responsibilities and limitations associated with each.
Duties and Responsibilities of an Attorney
- Acting in your best interests and making decisions that align with your wishes and preferences
- Manage your affairs responsibly – acting in your best interests and keeping records
- Keeping their finances separate from yours unless you share joint accounts
- Act with honesty and in good faith.
- Work with other decision-makers.
- Make decisions that are the least restrictive of your freedom.
- Protect you from neglect, abuse, or exploitation.
- Act within the limits of their appointment – start date, powers, limitations.
Making Important Decisions with an Enduring Power of Attorney
Revoking or Changing Your Power of Attorney
Life circumstances can change, and so can your wishes regarding who manages your affairs. If you wish to revoke or change your Power of Attorney, this can be done at any time, provided you have the capacity to do so.
Sapphire Legal can assist with the revocation process, ensuring that your decision is legally documented and communicated to the necessary parties. For a discussion of how to assess capacity, please see the NSW Justice Capacity Toolkit.
Contact Us Today to Discuss Your Power of Attorney Needs
Frequently Asked Questions
An attorney must have full legal capacity. The Prescribed Form for the Enduring Power of Attorney contained in the Powers of Attorney Regulations 2016 (NSW) notes that the attorney appointed must be over 18 years of age and must not be a bankrupt or insolvent. It also recommends that if the Principal’s affairs are complicated, an attorney should be appointed who has the skills to deal with complex financial arrangements.
Multiple attorneys can be appointed as first choice. It is also strongly recommended that a Principal appoint a person(s) as a substitute attorney in the event that a first choice attorney is unable or unwilling to act.
Multiple attorneys may be appointed to act either “Jointly” or “Jointly and Severally”. When appointed Jointly, they must all act together whereas if appointed Jointly and Severally, they may act together or individually.
Even where attorneys are authorised to act Jointly and Severally, the Principal can still require them to act Jointly for transactions above a particular threshold. For example, the Principal may require the attorney’s to act jointly when making transactions above $5,000.
A Power of Attorney cannot be used for health or lifestyle decisions. You should appoint an Enduring Guardian if you want a particular person to make decisions relating to access to support services, health care, and decisions about where and with whom you live and the medical treatment you receive.
An Enduring Power of Attorney does not operate to confer any authority on an attorney until the attorney has accepted the appointment by signing the document creating the power.
The Principal elects when the Power of Attorney is to commence to operate. For example:
- Once the Attorney has accepted their appointments by signing the Power of Attorney document; oo
- Once a medical practitioner considers that the Principal is unable to manage his/her affairs and provides a document to that effect; or
- Once the Attorneys consider that the Principal needs assistance managing his/her affairs; or
- Other – i.e. by a specified date.
If you need a Power of Attorney for interstate or overseas, you may need to make a Power of Attorney under their laws. The laws of some other States and Territories in Australia may give effect to a Power of Attorney in NSW but if should not be assumed this will always be the case.
If you’d like Sapphire Legal to make your Power of Attorney document, you can begin the process online. After you’ve filled out and submitted the online form, we’ll contact you, and arrange a time to finalise the documentation.
No. Your attorney can not change an existing will, or give instructions to make a will on your behalf. Therefore it is so important that you prepare your Last Will and Testament whilst you still have mental capacity to do so. Once done, you can include a condition in your power of attorney that requires your attorney to acquaint themselves with your Will and Testament and request that, to the extent practicable, they do not make any decisions that may cause a gift under your will to fail.
A General Power of Attorney can no longer be used once a person loses capacity such that they are unable to make decisions or act on their own. This is where an Enduring Power of Attorney comes in. An Enduring Power of Attorney can be used when a person has ‘lost capacity’ but this document must be prepared before the appointer loses capacity.
Your power of attorney appoints one or more individuals to have the authority to make financial and legal decisions on your behalf. Your attorney can continue to act until they are made aware of the termination of their appointment. To do this, you revocation must be in writing, signed by you and witnessed. If you have an enduring power of attorney, it continues once you lose capacity which is why it is important that in the event you wish to revoke this document, you do so whilst you still have mental capacity otherwise this opportunity will be lost. If you have registered your Power of Attorney with NSW Land Registry Services, you must also register the revocation with the Registry.
Unfortunately, no. Once a person has lost their mental capacity, they will lose their ability to instruct a solicitor to prepare legal documents on their behalf. If you are a resident of NSW, your family or loved ones will need to apply to the NSW Civil and Administrative Tribunal (NCAT) to apply for a guardianship order. This can be stressful and time-consuming. NCAT will then decide whether or not the person who is applying should be allowed to manage your affairs. There is no guarantee that they will agree and may make an order appointing someone else including the NSW Public Trustee & Guardian.
Generally speaking, while it is good to include your spouse or siblings, consider the fact that they may not be around or have the mental capacity themselves to manage your financial affairs. You need to ensure that whomever you appoint, you trust that they will act in your best interests. Ideally, wherever possible, you should appoint two attorney’s and a substitute attorney should one or both of your primary attorneys be unable or unwilling to act.
If your power of attorney will require your attorney to deal with property, yes, it must be registered with NSW Lands and Titles Office.
Yes. A power of attorney is a legal document that allows you to appoint a person or people (your attorney’s) to manage your financial and legal affairs. This means withdrawing and depositing money in your bank accounts and any income you receive. If you appoint more than one attorney to act jointly and severally, you can include a condition such that any withdrawals above a certain amount requires your attorneys to act jointly.
One major downfall of a POA is the agent may act in ways or do things that the principal had not intended. There is no direct oversight of the agent’s activities by anyone other than you, the principal. This can lend a hand to situations such as elder financial abuse and/or fraud.
Indeed, a power of attorney forms a vital part of your estate preparation along with your Will and Testament and Enduring Guardianship. Unlike a Will however which only comes into effect once you die, your enduring power of attorney and enduring guardianship are effective whilst you are still alive but have lost mental capacity to take care of your own financial, legal and lifestyle/health decisions. Once you lose capacity however, you also lose your ability to instruct a solicitor to prepare your documents which is why it is so important to do this whilst you still have the mental capacity to do so.
