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The information contained on this website is a guide only and should not be considered to be legal advice. If you are unsure about any aspect of the matter should seek professional legal advice. Information about legal advice can be found here.
A power of attorney is a very important and powerful legal document that you can sign to appoint another person to act on your behalf in relation to your property and financial affairs. The person you appoint should be someone you can trust as any action they take will be lawfully binding on you. The person you appoint must be over the age of 18 years.
For the purpose of power of attorney, you are called the Principal, and the person you appoint to act on your behalf is called your Attorney.
There are two main types of power of attorney:
A power of attorney cannot be used for health or lifestyle decisions (such as medical treatment). You should appoint an Enduring Guardian (see below) if you want a particular person to make these decisions.
If you are uncertain about whether you need a power of attorney, you should get legal advice from a solicitor. Staff at the local court cannot provide you with legal advice. A solicitor can also give you advice about what conditions you may want to put in the power of attorney.
An enduring power of attorney is witnessed by a prescribed witness. The Powers of Attorney Act 2003 provides a list of prescribed witnesses including:
The prescribed witness is required to do certain things before signing, including:
The person you appoint as your attorney will then need to accept the appointment by signing the form.
If you need a Power of Attorney document witnessed, a Registrar of the Local Court is an authorised witness, however, can only witness documents in some circumstances. You will need to make an appointment and complete the form before you attend, the Registrar cannot complete the forms, give you legal advice or witness a complex clause. The Registrar will undertake capacity testing before witnessing the documents.
If the Power of Attorney has complex clauses or there are concerns around capacity, you may be advised that it cannot be witnessed and referred for legal advice.
If you have made an appointment at the Local Court for a Registrar to witness an enduring Power of Attorney you will need to bring suitable identification for the Registrar to confirm who you are.
No. However, if the person you appoint as your attorney needs to deal with any real estate in New South Wales, the enduring Power of Attorney must be registered with the Land and Property Services NSW.
You can also register a Power of Attorney in the General Register of Deeds at Department of Land and Property Information for safe keeping. There is a registration fee payable.
You can download a Power of Attorney form from the Land Registry Services website or you can purchase a 'Prepare your own Enduring Power of Attorney and Enduring Guardianship Pack', which are available at post offices.
There are many publications available. For more information refer to:
Enduring Guardianship allows you to appoint a person to make health and lifestyle decisions on your behalf if you lose the capacity to make your own decisions in the future. You may want to get independent legal advice before appointing an Enduring Guardian.
The person you appoint should be someone you can trust to make decisions in your best interests. The person you appoint must be over the age of 18 years. You can appoint more than one enduring guardian and an alternative guardian. An Enduring Guardianship appointment cannot be used for property or financial decisions. You should appoint an enduring power of attorney if you want a particular person to make these decisions.
A guardian can only consent to medical and dental treatment that will promote or maintain your health and well being, and cannot consent to treatment that you object to. You cannot appoint your guardian to make any decisions that are contrary to law. A guardian cannot make or alter your will on your behalf.
If you require assistance with a complex Enduring Guardianship appointment you will need to contact a solicitor.
No, an Enduring Guardianship and an advance care directive are not the same thing, though they can be related. An Enduring Guardianship legally appoints someone to make personal and health-related decisions on your behalf if you become unable to do so. An advance directive, on the other hand, is a document that outlines your specific wishes regarding medical treatment and care should you become incapacitated
The appointment of your Enduring Guardian takes effect only if you lose the capacity to make your own personal or lifestyle decisions and remains in effect until you regain capacity or die. A person in need of a guardian means a person who because of a disability, is totally or partially incapable of making decisions.
An eligible witness must witness an appointment of an Enduring Guardian. Persons who may witness include:
The witness is required to do certain things before signing, including:
The person you appoint as your guardian will then need to accept the appointment by signing the form and having it witnessed. If you have made an appointment at the local court for a registrar to witness an enduring guardianship, you will need to bring suitable identification for the registrar to confirm who you are.
If you need Enduring Guardianship document witnessed, a Registrar of the Local Court is an authorised witness, however, can only witness documents in some circumstances. You will need to make an appointment and complete the form before you attend, the Registrar cannot complete the forms, give you legal advice or witness a complex clause. The Registrar will undertake capacity testing before witnessing the documents.
If the enduring guardianship has complex clauses or there are concerns around capacity, you may be advised that it cannot be witnessed and referred for legal advice.
If you have made an appointment at the Local Court for a Registrar to witness an Enduring Guardianship you will need to bring suitable identification for the Registrar to confirm who you are.
No. However, if you want to, you can register an Enduring Guardianship appointment in the General Register of Deeds at Department of Land and Property Information for safe keeping. There is a registration fee payable.
The Appointment of Enduring Guardian form can be obtained from your local post office or by contacting a Local Court Registry.
For information pertaining to ‘Appointment of Enduring Guardian’ see NSW Public Trustee and Guardian.
There are many publications available. For more information refer to:
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