Enduring Power of Attorney

An attorney appointed under an enduring power of attorney can make financial decisions on your behalf, for example selling your house or operating your bank account.

The NSW legislation governing enduring powers of attorney is the NSW Powers of Attorney Act 2003 . An enduring power of attorney made under the NSW Act can be used to make decisions about property or finances in NSW.

NSW also recognises enduring powers of attorney made under the law of other states and territories of Australia so that an interstate enduring power of attorney can be used in NSW.

Other states and territories of Australia have their own legislation governing enduring powers of attorney.

Some, but not all, of the other Australian states and territories automatically recognise a NSW enduring power of attorney as legally valid in those states. If you have savings, assets or property in another state or territory, you should find out whether the law in that other state or territory will allow a NSW enduring power of attorney to be used there. If the NSW enduring power of attorney cannot be used in the other state or territory, you may wish to consider making an enduring power of attorney under the laws of that state or territory. For more information about enduring power of attorney laws in other states or territories, you should contact the relevant interstate guardianship organisation. Their contact details can be found at the website for the Australian uardianship and Administration Committee (www.agac.org.au ).

Reviewing Enduring Powers of Attorney

The Guardianship Tribunal has the power to review enduring powers of attorney under the provisions of the Powers of Attorney Act 2003 . The Tribunal can review an enduring power of attorney if it considers the request for a review is in the best interests of the person who made the enduring power of attorney.

If it is satisfied of the need to do so, the Tribunal can vary or revoke the enduring power of attorney. The Tribunal has the power to remove an attorney from office or appoint a substitute attorney. It can reinstate an enduring power of attorney that has lapsed because the attorney is no longer able to act. It can also require an attorney to provide accounts and information for audit and require an appointed attorney to submit a financial management plan.

The Tribunal has the power to declare whether the person did or did not have the mental capacity to make a valid enduring power of attorney. The Tribunal can declare an enduring power of attorney to be invalid, in whole or in part.

The Tribunal also has the power to declare that the person lacked capacity at or during a specified time or lacks capacity for the time being.

For more information

For further information about how to make an enduring power of attorney, read the brochure Planning Ahead...Enduring Power of Attorney.

For further information about reviewing enduring powers of attorney, read the brochure Review of Enduring Powers of Attorney: Information for Parties.

An Appointment of Enduring Power of Attorney form and an Application to Review Enduring Power of Attorney form are available for download.

To speak to someone about enduring powers of attorney either contact the Guardianship Tribunal or contact a solicitor.

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