A power of attorney is one of the most important legal documents you can have in place, yet it is one that many people put off until a crisis makes it urgent.
Whether you are planning ahead as part of a broader estate plan, helping an ageing parent get their affairs in order, or facing a situation where someone needs to act on your behalf right away, having the right document in place makes an enormous difference.
Coleman Greig’s power of attorney lawyers in NSW work with individuals and families to prepare documents that are properly drafted, correctly executed, and genuinely suited to each client’s circumstances.
We take the time to understand your situation before recommending the most appropriate type of appointment.
What Is a Power of Attorney?
A Power of Attorney is a legal document that gives another person or organisation the power to deal with your assets and financial affairs while you are still alive.
Granting a power of attorney to an individual or an organisation is a very serious decision. The person you ask to look after your financial and legal affairs must be responsible, knowledgeable and experienced.
More importantly, you must be able to trust them to ensure they keep your best interests at heart.
What Can a Power of Attorney Be Used For?
A power of attorney covers financial and legal decision-making. Common uses include managing bank accounts and investments, paying bills and ongoing expenses, buying, selling, or managing real estate, handling business affairs, signing contracts, and dealing with superannuation and taxation matters.
It is equally important to understand what a power of attorney cannot do. It does not cover personal or lifestyle decisions, such as where you live or what medical treatment you receive. Those matters are handled by a separate document known as an Enduring Guardianship.
A power of attorney also cannot be used to make or change a Will, vote on the principal’s behalf, or take any action after the principal’s death. Once the principal passes away, authority passes to the executor of the estate rather than the attorney.
Many people benefit from having both a power of attorney and an enduring guardianship in place, as together they ensure every area of life is covered should you ever need someone to step in.
Types of Power of Attorney
There are different types of Power of Attorney available, depending upon your needs both now and into the future.
The team at Coleman Greig can work with you to determine the most appropriate form of Attorney and then prepare the relevant documentation to ensure that your financial and legal affairs are taken care of properly.
General Power of Attorney
A general power of attorney is the broadest form of appointment, authorising your attorney to act across all of your financial and legal affairs without restriction.
It is typically used for short-term or specific arrangements, such as while you are travelling overseas or recovering from surgery and need someone to manage your affairs in your absence.
It is important to understand that a general power of attorney ceases to be effective if the principal loses mental capacity, which is why it is not suitable on its own as a long-term planning tool.
Active Power of Attorney
An active power of attorney is one where you direct an individual or organisation to act immediately to make your financial and legal decisions. This type of appointment takes effect as soon as it is signed and is useful where the principal needs immediate assistance or wants to delegate authority right away, whether on a temporary or ongoing basis.
Dormant Power of Attorney
A dormant power of attorney is one in which the document is activated if and when required. This type is sometimes referred to as a “springing” power of attorney, as it springs into effect only when specified triggering circumstances arise.
The conditions that activate the document must be clearly defined at the time of preparation.
The key advantage is that it grants no authority to the attorney unless and until those circumstances occur, which provides an additional layer of protection for the principal.
Enduring Power of Attorney
An enduring power of attorney is a permanent arrangement that will remain effective even if you suffer loss of capacity due to illness or unsoundness of mind. This is the most significant type of power of attorney for long-term planning purposes and is the form most commonly prepared as part of an estate planning review.
An enduring power of attorney is governed by the Powers of Attorney Act 2003 (NSW) and is specifically designed to survive loss of mental capacity. This makes it the appropriate choice for aged care planning, managing progressive illness, and ensuring someone you trust can continue to manage your affairs if your health declines.
It is critical to note that an enduring power of attorney must be made while the principal still has capacity. Once capacity is lost, it is too late to put one in place. Where the enduring power of attorney is to be used for property transactions, it must also be registered with NSW Land Registry Services before it can be exercised.
Limited Power of Attorney
A limited power of attorney is restricted as to time or to carrying out only certain tasks.
This type is commonly used in NSW for specific, defined purposes; for example, authorising a solicitor to complete a single property transaction while the principal is overseas, or delegating authority over a particular financial matter for a set period.
The scope of the attorney’s authority must be carefully and specifically defined in the document. A limited power of attorney that is vague or broadly worded risks being misused or unenforceable, which is why professional preparation is strongly recommended.
Revoking a Power of Attorney
A power of attorney can be revoked or cancelled at any time as long as the principal still has mental capacity.
Revocation should be done in writing, and any person or institution that has been relying on the original document, such as a bank or financial adviser, should be formally notified to ensure the revocation is recognised and the attorney can no longer act.
Choosing the Right Attorney
Selecting the right person to act as your attorney is as important as preparing the document itself.
Legally, the attorney must be over 18 years of age and, for financial powers, must not be bankrupt. Beyond these requirements, the qualities that matter most are trustworthiness, financial responsibility, and a genuine willingness to act in the principal’s best interests rather than their own.
An attorney is required to keep clear and accurate records of all actions taken on the principal’s behalf and must not use the power for personal gain.
Family members are most commonly appointed, but this is not always the right choice. Where there is no suitable individual, or where an independent appointment is preferred, a professional trustee company may be appointed instead. Coleman Greig can advise on the most appropriate choice for your specific circumstances.
How Our Power of Attorney Lawyers Can Help
Coleman Greig’s power of attorney lawyers work with clients across NSW to put the right arrangements in place before they are needed. Depending on your situation, we can assist with:
- Advising on the most appropriate type of power of attorney for your needs and circumstances
- Preparing the document to ensure it is correctly drafted, properly executed, and registered with NSW Land Registry Services where required
- Preparing complementary documents, including an Enduring Guardianship and Will, as part of a comprehensive estate planning review
- Advising attorneys on their obligations, limitations, and responsibilities under the appointment
- Assisting where a power of attorney is being misused, or where questions have arisen about how an attorney is exercising their authority
If you are considering a broader review of your estate planning arrangements, our Wills and Estate Planning page provides a useful overview of all the documents and services our team can assist with.
Coleman Greig are available to service your needs no matter where you are located in NSW. Our network of offices are supported by the latest digital technology, enabling us to work with you in a way that suits you best.
Speak With a Power of Attorney Lawyer Today
The right time to put a power of attorney in place is while you are well and have full capacity, not after a health event has made it a matter of urgency.
Acting early gives you full control over who is appointed, what authority they are given, and how your affairs will be managed if your circumstances change.
Coleman Greig’s power of attorney lawyers assist clients across NSW, with offices in Parramatta, Norwest, Penrith, and Sydney CBD. We also work with clients remotely, so location is no barrier to getting the advice you need.
To discuss your circumstances with a member of our team, please contact us directly or visit our locations to find your nearest office. This page is general in nature and is not a substitute for legal advice tailored to your specific situation.
