Power of Attorney
What is a Power of Attorney?
A power of attorney is a legal document empowering a person or persons (“the attorney”) to act on behalf of another person (“the principal”) with respect to the principal’s assets, debts and financial affairs.
Powers of attorney can be:
1. General – the attorney is able to do almost all things the principal could legally do, though this power of attorney will expire if the principal loses mental capacity.
2. Limited – the power is limited by, for example, time or limited to a specific act.
3. Enduring – the power remains effective even after the principal has lost mental capacity. It will remain in force until death or until the power is validly revoked.
Who should I appoint to be my Attorney?
Appointing someone as your attorney allows that person to step into your shoes and do almost anything you could do in relation to your assets located in NSW. For instance, your attorney could access your bank accounts, sell your shares and sell or mortgage your real estate. It is therefore an extremely powerful document.
A power of attorney should only be given to someone you trust completely. They are extremely useful documents in the right hands but very dangerous in the wrong hands. Your attorney can be any person over the age of 18 years who you trust to manage your affairs.
You might consider appointing more than one person to act as your attorney, either jointly (i.e. they must act together) or jointly and severally (i.e. they can act together but can also act independently of each other). Bear in mind that if you appoint two or more people to act jointly, this will slow down the administration of your affairs as each and every person will need to sign documents before any act can be done in relation to your affairs.
How do I make an Enduring Power of Attorney?
We recommend that you engage a solicitor of YFX Lawyers to prepare an Enduring Power of Attorney. In any event, your solicitor (or another prescribed person) will need to sign a certificate that accompanies the document, to make the appointment of your attorney effective.
That certificate is that the solicitor explained the effect of the power of attorney to you and that he or she witnessed your execution of the document.
Your Attorney must also sign the document, to accept his or her appointment as your attorney, to make the appointment effective.
Can I revoke an Enduring Power of Attorney?
You can revoke an Enduring Power of Attorney at any time whilst you have the capacity to do so.There is no prescribed form for revoking an Enduring Power of Attorney, which means a letter to the attorney can suffice. However, as an attorney is entitled to continue to act as your attorney, unless he or she has been given notice of the revocation of his or her appointment as your attorney, it is prudent to serve a notice revoking the power of attorney on the attorney and to keep evidence of the service of the notice on the attorney. Any third parties with whom the attorney might deal on your behalf, should also be given notice of the revocation of the power of attorney. If you have registered your power of attorney it is also prudent to register any document purporting to revoke the power of attorney.
For more information please contact YFX Lawyers on (02) 8677 5386
For more information, please contact YFX Lawyers on (02) 8677 5386 or ring to make an appointment with our office.