Power of Attorney Lawyers Sydney

The power given can be limited to a specific purpose, e.g. operating a bank account or selling real estate, or be a general power that permits the Power of Attorney to carry out any business you can lawfully carry out.

Additionally, in order to more specifically control an attorney’s action, the new Act states that a Power of Attorney cannot authorise a gift of all or any of the principal’s property unless such authority is clearly outlined in the document. There are also provisions to protect beneficiaries against the possible disposal of testamentary gifts or assets by the attorney prior to the death of the person granting the power.

A Power of Attorney can do any of the following designated duties;

• Make decisions for you that consider your wishes and desires
• Manage your current finances including paying bills
• Keep your assets safe from being accessible by those you have not designated as needing your financial assistance
• Acting in good faith and with due diligence in protecting your assets
• Work cooperatively with those that you share a financial interest with
• Allow for you to remain a part of the decision-making process as you see fit and necessary
• To act within the powers that you have assigned them and nothing more

In the past, the person granting the power was the only person required to sign the document. The new legislation however, requires both the person granting the power and the person nominated as enduring attorney to sign and accept the conditions outlined in the document.

It is important to note that the Enduring Power of Attorney instrument does not become operational until the nominated attorney has accepted the appointment and signed the document. This new requirement applies to Enduring Powers of Attorney and does not apply to ordinary Powers of Attorney.

The legislation also allows for some uniformity across Australia. The Act recognises Powers of Attorney made in other States and Territories.

The Act also gives the Guardianship Tribunal and the Administrative Appeals Tribunal a broader range of authority when dealing with matters such as:

• The capacity to make a Power of Attorney
• Breaches of the Trustee Act

You may select any adult who has the capacity to make sound decisions on your behalf. This can include a friend, family member, family attorney, the executor of your Will, or a business person that you have a trusting relationship with.

For a General Power of Attorney, the duration is until the creator revokes the powers or if the creator becomes mentally incapacitated.

For an enduring power of attorney, the document will remain in effect from the date of inception, through and including, if the person who created the enduring power of attorney should become incapacitated. 

For a Limited Power of Attorney, the document will only allow for the designated decision-maker to do so for those events and/or decisions that are specifically stated in the Limited Power of Attorney. This Limited Power of Attorney can be revoked by the maker at any time.

The one Power of Attorney which can carry with it some risks are the Enduring Power of Attorney. This is because this type of power of attorney document is non-revocable. When entering into this type of agreement you are giving permanent decision-making power, over your finances, to someone else. In doing so, there is always the risk of financial abuse.

In general, when this happens, the Power of Attorney is automatically revoked. You then must elect a new person to take over as your Power of Attorney and a new document must be drafted.

While there are costs involved in preparing a Power of Attorney, such costs should not be a deterrent to creating a Power of Attorney. There are various ways in which a Power of Attorney can be drafted and varying costs depending upon your particular needs.