What is a General Power of Attorney?
An attorney appointed under a Power of Attorney can make financial decisions on your behalf about property or finances in New South Wales, for example, selling/buying a house, operating your bank account, paying a bill, voting at meetings or any other function which can be legally delegated. To give a valid Power of Attorney, you must be mentally competent and you must understand the nature and effect of the power being granted. A General Power of Attorney ceases to have effect if you lose your mental capacity.
What is an Enduring Power of Attorney?
An Enduring Power of Attorney allows you to delegate the management of your financial affairs even beyond when you are no longer able to understand the implications, such as if you become mentally incapacitated. However, an Enduring Power of Attorney can only be given while you are able to understand the nature and effect of the document.
Do I need to see a lawyer to have a General Power of Attorney or Enduring Power of Attorney prepared?
There are special rules provided by the legislation about the creation of Enduring Powers of Attorney and about the responsibilities of the attorney. In order for the Enduring Power of Attorney to be recognised after you lose mental capacity, there must be a certificate attached, signed by a person prescribed by the law, such as a solicitor. At Solari & Stock our lawyers can also discuss with you all other relevant issues, including the choice of person or persons to be appointed, whether one or more should be appointed, whether you should appoint a reserve attorney, what conditions or limits should be placed on the Power of Attorney and in what circumstances are you happy for your attorney to be free to make decisions.
A General or Enduring Power of Attorney must be registered with the Department of Lands if you want your attorney to be able to sell, buy or otherwise deal with real estate on your behalf. Some brokers and companies may also require registration if you want your attorney to be able to deal with shares on your behalf.
What if I have assets interstate?
As New South Wales recognises Enduring Powers of Attorney made under the laws of other States and Territories of Australia an interstate Enduring Power of Attorney can be used in New South Wales. Other States and Territories of Australia have their own legislation governing Enduring Powers of Attorney. If you have assets or property in another State or Territory Solari & Stock Lawyers can advise you as to whether the laws in that other State or Territory will allow a New South Wales Enduring Power of Attorney to be used there.
Can I change a Power of Attorney?
You can revoke (cancel)a Power of Attorney at any time as long as you are legally mentally competent. Should you become mentally incompetent, a General Power of Attorney becomes void. You are unable to revoke an Enduring Power of Attorney if you do not have mental capacity.
When will the Enduring Power of Attorney take effect?
The Enduring Power of Attorney can take effect immediately or only come into effect in certain circumstances depending on your wishes and circumstances. For example, you might decide to appoint an Enduring Power of Attorney that will only become effective in the event that you are no longer able to manage financial matters for yourself.
At Solari & Stock Lawyers we discuss with you all of your options so that the Power of Attorney covers all of the circumstances you wish.