Enduring Power of Attorney and Guardianship in NSW

Planning for the possibility that you might one day be unable to make your own decisions is one of the most caring things you can do for your family. An enduring power of attorney in NSW lets you choose who will manage your money and property, and an enduring guardian can make personal and health decisions for you. This article explains how each works and how they differ. It is general information only.

Why plan ahead?

Illness, injury or conditions such as dementia can affect a person's ability to make decisions at any age. If you have not appointed anyone in advance, your family may have to apply to the NSW Civil and Administrative Tribunal (NCAT) for formal orders. This can take time, cost money and create stress, and the person appointed may not be who you would have chosen. Making appointments while you have capacity puts you in control.

What is an enduring power of attorney?

A power of attorney is a legal document in which you (the principal) appoint someone (your attorney) to make financial and legal decisions for you. The law in NSW is found mainly in the Powers of Attorney Act 2003.

A general power of attorney stops working if you lose capacity. An enduring power of attorney continues to operate even if you lose the ability to make decisions, which is when it is often most needed. Your attorney can generally deal with things like bank accounts, bills, investments and property, subject to any limits and instructions you include.

How do you make an enduring power of attorney?

• You must have capacity. You need to understand what the document does and what powers you are giving.
• Use the right form and wording. NSW has prescribed requirements for an enduring power of attorney.
• It must be properly witnessed. Your signature must be witnessed by an authorised person, such as a solicitor, barrister, a Local Court registrar or another prescribed person. The witness completes a certificate confirming they explained the document's effect to you and believe you understood it.
• Your attorney must accept the role. They do this by signing the document.

You can decide when the power starts. For example, it may begin immediately, on a set date, or only if you lose capacity. You can also give directions about how the attorney should act, and you can appoint more than one attorney or name a replacement. If your attorney is going to deal with land, the document generally needs to be registered with NSW Land Registry Services.

What is enduring guardianship?

An enduring guardian makes personal decisions for you if you become unable to do so yourself. These generally cover where you live, your health care and other lifestyle matters. The appointment is governed by the Guardianship Act 1987. Unlike an attorney, an enduring guardian does not manage your money.

The appointment generally takes effect only when you are no longer capable of making those decisions. You can set out your wishes in the document, and you can appoint more than one guardian or name a substitute. You must be an adult, and certain people, such as those involved in your medical treatment, cannot be appointed. To be valid, the appointment must be made in the approved form and signed in front of an authorised witness such as a solicitor, barrister or Local Court registrar.

Choosing the right people

Your attorney and guardian can be the same person or different people. Choose someone you trust, who is honest, reliable and likely to respect your wishes. Think about whether they are organised enough, whether they are likely to live nearby, and whether your family is likely to accept their role. It is also worth talking to them before you appoint them so they understand what you expect.

Safeguards and oversight

Attorneys must act in your best interests, keep your property separate from their own and avoid conflicts of interest. If there are concerns that an attorney or guardian is not acting properly, NCAT can review the appointment and make orders. You can also revoke an appointment while you still have capacity, but it is important to do so in writing and to notify your attorney, banks and any relevant registries.

What happens when you die?

An enduring power of attorney and an enduring guardianship both end on your death. At that point, your will and your executor take over. This is why it is sensible to review your will, power of attorney and guardianship appointment together.

Frequently Asked Questions

Is an enduring power of attorney the same as an enduring guardian?

No. An attorney deals with money and property, while an enduring guardian makes personal, lifestyle and health care decisions. Many people appoint both, and they may choose the same person or different people for each role.

Can I make my own enduring power of attorney from a template?

The document must meet formal NSW requirements and be witnessed by an authorised person who certifies that they explained it to you. Errors can invalidate the document or cause problems when it is needed. Legal advice is strongly recommended.

When does an enduring power of attorney start?

You decide. It can start immediately, at a future date or event, or when you lose capacity. Think carefully about this choice, and record it clearly in the document.

What if I do not have an attorney or guardian and lose capacity?

Your family or others may need to apply to NCAT for a financial management order or a guardianship order. NCAT can then appoint a person or body to make decisions, which may not be the person you would have chosen.

This article is general information only and is not legal advice. Laws and processes change, and every situation is different. Speak to a lawyer about your circumstances before you act.