FAQs

Who should have these documents?

​Every adult should have an enduring power of attorney and appointment of enduring guardian. These documents enable people you trust to look after your interests when you can't.

Example: You are suddenly injured and remain unconscious for a few weeks. Your trusted person could use the documents to make decisions about your medical care, obtain information about your condition from your doctors, and pay your bills from money in your bank account until you regain consciousness and can take over managing your own interests again.

​These documents tend to become more important as a person gets older. Many older people rely on others for physical assistance with paying your bills, sorting out their legal matters such as the sale of your house and dealing with Centrelink or their superannuation fund. Helpers will find it much easier to assist their older relative or friend if they are given explicit power  through an Enduring Power of Attorney  and Appointment of Enduring Guardian to assist the document-maker with these day-to-day tasks

Can I use a NSW Power of Attorney in another State or Territory? Can I use it overseas?

A NSW Power of Attorney deals with your property and affairs within NSW only, however, it is recognised by other States and Territories in Australia and often may be recognised in an overseas jurisdiction as well. If you have assets located outside of NSW, you would need to have a Power of Attorney drafted for that other State or Territory to deal with those assets even if your NSW Power of Attorney is recognised by that State or Territory or other Country. Recognition of the Power of Attorney in another State or Territory or Country does not mean you can use your NSW Power of Attorney to deal with assets located outside of the borders of NSW. Similarly, if you have assets located overseas, the Power of Attorney to manage those assets must be drawn up in that jurisdiction.

Can I instruct a lawyer to draft an Enduring Power of Attorney for my parent or other person?

No, the parent or other person must themselves give the instruction. If the parent or other person is not able to do this, for example, because they have dementia, then you must seek orders from the Guardianship Division of the NSW Civil and Administrative Tribunal. This is because the documents give authority to another person to perform particularly important tasks. The document maker themselves must decide who that important person will be that will act for them and what that person is allowed and not allowed to do with the document-maker's money, other assets and personal information.

​For this reason, it is important that Enduring Powers of Attorney are drawn up while a document-maker is still capable of understanding that they are handing over authority to another person to handle their affairs. If a person no longer quite understands what the documents mean for them in a practical sense, it is not possible for these documents to be drawn up. This is because a person who can't understand can't give full and voluntary consent to the document.

Example: Sue is diagnosed with early stage, slow progressing dementia. She does not have an enduring power of attorney. Sue knows that she will need someone to help with her money and assets and paying her bills in future, but wrongly believes that it is too late for her to do anything about this because she has been diagnosed with dementia. In fact as she is still able to make decisions for herself and understands what needs to be done she could appoint her daughter Jane to act as her attorney in future when she loses the mental capacity to make those decisions.

Sue's daughter Jane contacts a solicitor a few years later when Sue's dementia has progressed to a point where Sue can no longer be left to live alone. Jane would like to be appointed as Sue's guardian and attorney. The solicitor assesses Sue but finds that Sue doesn’t understand why she needs to appoint an attorney. The solicitor advises Jane that it is unfortunately too late to draft a power of attorney for Sue. Jane will need to be appointed as Jane's guardian by the NSW Civil and Administrative Tribunal. She will need to make an application to be appointed as a financial guardian for Sue.

It would have been a lot simpler for Jane if Sue had drafted an Enduring Power of Attorney when she was first diagnosed with dementia. Her solicitor could have assessed her ability then to give instructions, and take other precautions, but Sue could probably have had the documents drafted nonetheless.

When does a Power of Attorney begin to operate?

​Some people, particularly elderly persons who are already receiving assistance with their day-to -day matters such as banking and paying their bills prefer to have the documents operate immediately. Most people, however, will not want the Power of Attorney to operate until such time they feel they can no longer manage on their own or they want it to operate for only a defined period of time. In that case, the documents are drafted so that they only operate once a certain event occurs or for a limited person

​Example: Larry states in his enduring power of attorney that his children will not be able to assist them until such time he enters Aged Care permanently. In that event, Larry's children will only be able to access Larry's bank account to pay his bills when Larry actually enters Aged Care permanently.

Can I cancel my Power of Attorney? If yes, how do I cancel it?

Both Enduring Powers of Attorney and Nominations of Enduring Guardian can be revoked (cancelled) at any time by the document maker, provided that person has the ability to understand the consequences of what they are doing by revoking the documents.

​The revocation must be in writing and must be served on all previously nominated Guardians and Attorneys.  This requirement is a protection for a document-maker. It means if they ever change their minds about who they have appointed as their guardian and/or attorney, they can quickly cancel the documents.

The Power of Attorney (and Appointment of Enduring Guardian) can not be cancelled once the document-maker has lost mental capacity. If the loss of mental capacity is only temporary, then the Power of Attorney while not cancelled does nevertheless not operate.