As a NSW wills and estates lawyer, one of the most common questions I hear is: “What exactly is a power of attorney, and do I really need one?”
The short answer is yes - almost every adult should have one. A power of attorney is one of the most important legal documents you can put in place, yet it’s often misunderstood. This article explains what it is, the choices you can make, when it can be revoked, and when it must be registered in NSW.
What Is a Power of Attorney?
A power of attorney is a legal document where you (called the principal) appoint someone you trust (called your attorney) to make financial and legal decisions on your behalf.
These decisions can include:
- Managing bank accounts
- Paying bills
- Dealing with Centrelink or the ATO
- Buying or selling property
A power of attorney does not give authority to make medical or lifestyle decisions. Those matters are covered by an Enduring Guardian, which is a separate document.
What Types of Power of Attorney Can You Choose?
In NSW, there are 2 main types:
1. General Power of Attorney
This operates only while you have mental capacity. If you lose capacity (for example, due to illness or injury), it automatically stops.
This type is often used for short-term situations, such as travelling overseas.
2. Enduring Power of Attorney
This continues to operate even if you lose capacity.
Most people choose an enduring power of attorney because it provides long-term protection and avoids the need for family members to apply to a tribunal or court if something happens to you.
What Decisions Can Your Attorney Make?
You can tailor the power of attorney to suit your needs. Common options include:
- Allowing your attorney to act immediately, or only if you lose capacity
- Appointing one attorney, joint attorneys, or substitute attorneys
- Limiting powers (for example, allowing bill payments but not property sales)
- Allowing or prohibiting gifts or financial assistance to others
Can a Power of Attorney Be Revoked?
Yes. A power of attorney can be revoked at any time, provided you still have legal capacity.
Revocation must be done properly - usually by signing a formal revocation document and notifying:
- The attorney
- Any banks or institutions relying on it
- Any government bodies or third parties involved
Once capacity is lost, you can no longer revoke or change a power of attorney. This is why choosing the right attorney from the outset is critical.
Here is a link to the revocation document -
https://correctiveservices.dcj.nsw.gov.au/documents/related-links/library/legal-portal/wills-and-guardianship/revocation-poa-form.pdf
Does a Power of Attorney Need to Be Registered in NSW?
A power of attorney does not always need to be registered.
However, registration is mandatory if your attorney is dealing with NSW land, such as:
- Selling real estate
- Transferring property
- Lodging dealings affecting land
In those cases, the document must be registered with NSW Land Registry Services before the transaction can proceed.
Banks and other institutions may also request registration or certified copies, even where registration is not legally required.
Why Putting One in Place Matters
Without a valid power of attorney:
- Your family may not be able to access your money
- Bills and mortgages may go unpaid
- Property transactions may be delayed or impossible
- Loved ones may be forced to apply to NCAT or the Supreme Court, which is costly and stressful
A properly drafted power of attorney avoids uncertainty and gives you control over who manages your legal, property and financial affairs.
Final Thoughts
A power of attorney is not just for older people - it is a practical document for anyone over 18. Like a will, it should be tailored to your circumstances and reviewed if your situation changes.
If you’re considering putting a power of attorney in place, or reviewing an existing one, obtaining proper legal advice ensures it will work when it is most needed.
Please give our accomplished team at Sylvania Legal and Conveyancing a call — we’re happy to help you with your power of attorney.
Telephone: (02) 9544 6443
Email: info@sylvanialegal.com.au
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