Making a Power of Attorney

Deciding to make a power of attorney can be a powerful decision, giving you the confidence that your wishes will be met.

Many of us have a very narrow idea of what a power of attorney document is. For some we think of business decisions and big investments, for others we think of what happens when we lose the capacity to make decisions for ourselves. The fact is there are powers of attorney documents relevant in both these circumstances, and either one might be relevant to you. In the end they both come down to one thing: to whom do you entrust the power to make the big decisions in your life when you’re not able to make them?

"Sometimes we choose to make a power of attorney document after receiving upsetting news about our health. It's important we know that someone we trust is attending to our wishes, even if we're unable to exercise it ourselves."

What is a power of attorney: a quick and simple definition

A power of attorney is a legal document you use to nominate a person to act on your behalf in financial and property matters. This person will act as your attorney – but they don’t have to be a solicitor, they can be a friend, a family member or a business partner.

A general power of attorney

A general power of attorney is typically given for a specific period and is often used in regards to matters of business. You may wish to appoint a general power of attorney if you are heading overseas or into the hospital. If you were to lose capacity due to illness or accident during this time, the general power of attorney would stop operating and therefore the appointed attorney would not be able to make financial decisions on your behalf.

An enduring power of attorney

An enduring power of attorney is an incredibly important and personal document. It appoints a trusted individual with the ability to make financial and property decisions on your behalf when you don’t have the capacity to do so.

Concerned about a family members capacity? Check out our article: Estate Planning NSW: Creating A Will When Capacity is in Doubt?

Who can make a power of attorney document?

A power of attorney document can be made by anyone over the age of 18 with the mental capacity to do so. This means the individual making the document must be able to fully comprehend what the document is and the subsequent implications. Many people decide to make an enduring power of attorney upon being diagnosed with a debilitating illness such as dementia. In these instances, persons with mild intellectual disabilities, or within the early stages of an illness affecting mental processes, may still have the capacity to make a power of attorney. However, if capacity is in doubt, an assessment by a doctor, psychologist or psychiatrist may be necessary.

The things you need to know:

• A power of attorney will not affect your will; it immediately ends upon your death.
• You don’t need to fear ‘losing control’ of your assets upon appointing a power of attorney; as long as you have capacity to make decisions you remain in control.
  A solicitor or the NSW Trustee and Guardian can prepare a power of attorney document for you.
• The form must be witnessed – a solicitor can do this for you.
  The person appointed as your attorney must also sign the form in order to accept their appointment.
• If you don’t have anyone you trust enough to appoint as power of attorney the NSW Trustee and Guardian can act as attorney for you.
• You choose how much power your attorney has over your financial affairs. You can give them as much direction as to what they are to do with your money and property as you see fit.
• You can cancel your power of attorney at any time.
• If property is involved, your power of attorney will need to be registered with the Land and Property management Authority (LPMA). You will have to pay a registration fee.

If you're interested in making a general or enduring power of attorney document, the wills and estates team at CM Lawyers can help. Fill out a contact form to book your appointment with our solicitors or to simply have a conversation about your needs.