What Each Document Does in NSW and When It Ends
A general power of attorney authorises someone to act on your behalf for legal and financial matters you define. People often use it for a set time, such as during travel or surgery. It ends if you lose capacity or when you die.
An enduring power of attorney also covers legal and financial decisions but it continues after you lose capacity. You must have capacity when you sign. The enduring form is a key planning tool for later life or unexpected illness or injury.
Financial vs Personal Decisions in NSW: Clear Boundaries
Under either a general power of attorney or an enduring power of attorney you can allow your attorney to manage money, pay bills, deal with banks, sign legal paperwork and handle property and investments. These authorities must be written in your document and can be limited. The enduring power’s benefit is that it continues after capacity is lost.
If an attorney will sign a dealing that affects land in NSW, the power of attorney needs to be registered with NSW Land Registry Services before that dealing is lodged. Registration also helps third parties confirm the authority.
Personal and health decisions sit with an Enduring Guardian in NSW
In NSW, a power of attorney does not cover health or lifestyle decisions. Those decisions are made by an Enduring Guardian you appoint in a separate document. Typical personal and health decisions include where you live, what services you receive and consent to medical or dental treatment. If no enduring guardian is in place and there is a dispute or concern, the Tribunal can make guardianship orders.
Capacity Requirements and Timing You Must Know
Capacity is the ability to understand the facts and choices, weigh up the consequences and communicate a decision. NSW guidance starts with the presumption of capacity for adults. Capacity can vary between decisions and over time. Planning while you are well avoids doubt and makes witnessing smoother.
You set when your authority starts. Many people choose “immediately,” while others specify a future date or a trigger, such as a medical opinion on loss of capacity. A general power of attorney stops if you lose capacity. An enduring power of attorney continues after loss of capacity. Both end on death.
NSW Witnessing Rules and When to Register
- General power of attorney: needs one adult witness who is not an attorney under the document.
- Enduring power of attorney: must be signed before a prescribed witness who certifies that they explained the effect of the document and that you appeared to understand it.
Prescribed witnesses include a solicitor or barrister, a registrar of a Local Court, a licensed conveyancer, or authorised NSW Trustee and Guardian staff. The certificate must be completed; without it the document will not be treated as an enduring power.
Registration and real property in NSW
Registration is not required to create a valid power of attorney. It is required if your attorney will sign certain dealings that affect NSW land. NSW Land Registry Services provides guidance and forms. Registration also helps third parties confirm the authority.
Quick Comparison: General Power of Attorney vs Enduring Power of Attorney (NSW)
| Feature | General Power of Attorney (NSW) | Enduring Power of Attorney (NSW) |
|---|---|---|
| Core purpose | Lets an attorney manage financial and legal tasks you choose | Lets an attorney manage financial and legal tasks you choose and keeps going after loss of capacity |
| When it starts | When you specify, often straight away | When you specify, often straight away or on a trigger you set |
| What happens if you lose capacity | Ends on loss of capacity | Continues after loss of capacity |
| Covers personal or health decisions? | No | No. Personal and health decisions are made by an Enduring Guardian |
| Capacity at signing | You must have capacity at signing | You must have capacity at signing and must understand the enduring effect |
| Witnessing | One adult witness who is not an attorney under the document | Must be signed before a prescribed witness who explains the effect and certifies understanding |
| Registration for land dealings | Registration required before your attorney signs certain dealings that affect NSW land | Same: registration required before your attorney signs certain dealings that affect NSW land |
| Ends on death | Yes | Yes |
Choosing an Attorney: Practical Tests and Safeguards
When choosing an attorney, look beyond trust. Consider financial skills, record-keeping, availability and willingness to communicate with family and advisers. Your attorney must act in your best interests and follow your written directions. Keep the power tailored to your needs to reduce risk. This is true for both a general power of attorney and an enduring power of attorney.
You can include safeguards, such as:
- Limits on gifts and loans
- A requirement to keep your funds separate and to keep records
- Conditions for large transactions, for example a second signature or written advice
- A direction to consult a named relative or adviser before selling a home
You may appoint one attorney or more than one. Joint attorneys must act together, which adds oversight but may slow urgent tasks. Joint and several appointments allow either attorney to act alone, which is faster but needs strong trust. You can also name substitute attorneys who step in if your first choice cannot act.
Misuse Risks and What to Do if Things Go Wrong
An attorney is a fiduciary and must act honestly, keep proper accounts and avoid conflicts. Red flags include unexplained withdrawals, unpaid bills, sudden changes in banking patterns and efforts to isolate you from advisers. If you suspect misuse, seek legal advice and contact your bank at once.
If there is no safe arrangement, the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court can make a financial management order. This appoints a financial manager to take control of financial affairs. NCAT can appoint an individual or the NSW Trustee and Guardian. Orders are often indefinite but can be reviewed; the Tribunal can also exclude part of the estate in limited cases.
NCAT and NSW Government pages explain when applications are made and what happens after a hearing. If personal and health decisions are in dispute, the Tribunal can make guardianship orders.
Step-by-Step: How to Put the Right NSW Documents in Place
- List what needs managing. Note assets, bills, business interests and any land dealings. Decide if you need a general power of attorney for a short task, an enduring power of attorney for long-term protection, or both.
- Choose the right people. Pick attorneys with integrity and practical skills. Consider joint or substitute appointments to build resilience.
- Draft clear instructions. State when the authority starts, any limits, and how attorneys make decisions together. Include safeguards for higher-risk transactions.
- Arrange proper witnessing. Use a prescribed witness for an enduring power of attorney and ensure the witness completes the certificate of explanation and understanding. A general power of attorney needs one independent adult witness who is not an attorney under the document.
- Register if land is involved. Register the power before your attorney signs any dealing that affects NSW land. Keep certified copies for banks and service providers.
- Tell key people and store copies. Give copies to your attorney, accountant and doctor if relevant. Keep the original safe and record where it is stored.
- Review regularly. Revisit your documents after moves, relationship changes or major health events. Early reviews reduce the risk of disputes.
Final Thoughts
Choosing between a general power of attorney and an enduring power of attorney is a simple idea with serious consequences. The general power of attorney helps with day-to-day convenience while you have capacity. The enduring power of attorney keeps your financial and legal affairs in safe hands if you lose capacity. In NSW, remember that personal and health choices belong with an Enduring Guardian, not with your attorney.
Make time to choose your attorneys with care, build clear limits and meet NSW witnessing rules. Register the document before any land dealings. These steps reduce risk and keep your plans strong. If you are unsure what to put in place, speak with a solicitor for advice tailored to your family and your assets.
If you’re unsure whether you need a General Power of Attorney or an Enduring Power of Attorney, or you want help preparing and witnessing the documents correctly, contact M de Mestre Lawyers on 0401 513 190 or email [email protected] for a confidential case assessment. We’ll explain your options under NSW law, ensure your documents are valid, and handle any required registration for land dealings.
Frequently Asked Questions (FAQs)
Can I have both a general power of attorney and an enduring power of attorney? Yes. Many people use a general power of attorney for a short task and keep an enduring power of attorney in place for long-term protection.
Does a power of attorney cover medical or lifestyle decisions in NSW? No. Personal and health decisions are made by an Enduring Guardian or, if needed, through guardianship orders.
Who can witness my enduring power of attorney? A prescribed witness such as a solicitor or barrister, a registrar of a Local Court, a licensed conveyancer or certain NSW Trustee and Guardian employees. The witness must explain the effect and certify your understanding.
Do I have to register my power of attorney? Registration is not required to make the document valid. It is required before your attorney signs certain dealings that affect NSW land. Registration also helps third parties confirm the authority.
What if there is misuse or a dispute and capacity is lost? Get legal advice at once. NCAT can appoint a financial manager to protect finances. For personal and health matters, NCAT can make guardianship orders.
