A Power of Attorney is a legal document where you give a person the authority to manage your money and make financial decisions for you.
If someone no longer has capacity to appoint a person under a Power of Attorney, an application can be made to the NSW Civil and Administrative Tribunal (NCAT) for a Financial Management Order. A Financial Management Order can be made by NCAT, the Mental Health Review Tribunal, or the Supreme Court.
A Power of Attorney or Financial Management Order is different to Enduring Guardianship, which allows someone to make lifestyle decisions for you if you can’t make those decisions for yourself.
You must have mental capacity to make a valid Power of Attorney appointment. This means that you must understand what you are making and the effect it can have on you.
You will need to fill out a Power of Attorney form.
If you want the Power of Attorney to continue even after you lose mental capacity, you can fill out an Enduring Power of Attorney form.
You should read the instructions on the form carefully and get legal advice if you are unsure how to complete it.
If you are appointing someone under an Enduring Power of Attorney, you must arrange for a prescribed witness to sign your form.
A prescribed witness is:
- an Australian lawyer
- a Registrar of a Local Court
- an overseas-registered foreign lawyer, or
- an approved employee of NSW Trustee & Guardian.
For more information, see Power of Attorney on the NSW State Library website.
Yes. If you appoint more than one person you need to decide whether you want them to act jointly, or jointly and severally.
If you appoint them jointly, they must make decisions allowed by the appointment together. This means that they must all agree before any action is taken.
If you appoint them jointly and severally, your Attorneys will be able to make decisions together or individually.
You should only appoint someone you trust and will be responsible with managing your money.
There are two types of Powers of Attorney: General or Enduring.
General Power of Attorney
A General Power of Attorney is valid until the person loses capacity to make informed decisions. This means that the person appointed under the General Power of Attorney can no longer use the Power of Attorney.
Enduring Power of Attorney
An Enduring Power of Attorney is valid even after the person loses capacity to make informed decisions. This means that the person appointed under the Enduring Power of Attorney can continue to use the Power of Attorney unless there is an Order from the NSW Civil and Administrative Tribunal or the Supreme Court appointing someone else.
A Power of Attorney is not valid after a person dies.
If you have capacity, you can revoke your Power of Attorney anytime by informing your attorney in writing. You should also notify your bank.
If the Power of Attorney was registered with NSW Land and Registry Services, you can also file a revocation form.
For more information, see Power of Attorney on the State Library website.
If you are a family member, relative or friend of a person who has lost capacity, and you have concerns that the person appointed as the Enduring Power of Attorney is not acting in the person’s best interests, you can apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for a review.
For more information, see Review of Enduring Power of Attorney on the NCAT website.
If there are no arrangements in place for someone else to deal with the property of a person who has lost capacity, a Financial Management Order may be made. For more information, see Guardianship and Financial Management Orders.
Useful links
- NSW Land Registry Services: General Power of Attorney form
- NSW Land Registry Services: Enduring Power of Attorney form
- NSW Trustee & Guardian: What is a Power of Attorney?
- NSW Trustee & Guardian: Information about Financial Management Orders
- Justice Connect: Powers of Attorney
- NSW Civil and Administrative Tribunal: Guardianship Division
- NSW Government: Enduring Power of Attorney
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