Choose who decides for you if you cannot.
Powers of attorney and enduring guardianship appointments, prepared and witnessed by solicitors.
A will only operates after death.
These documents cover the time while you are alive but unable to make your own decisions.
A power of attorney covers money and legal matters. An enduring guardian covers health and lifestyle.
They must be made while you still have capacity.
General and enduring powers of attorney
A power of attorney is made under the Powers of Attorney Act 2003. It lets a person you choose, your attorney, make financial and legal decisions for you.
General power of attorney.
- Covers financial and legal decisions while you can still make your own decisions.
- Stops having effect if you lose capacity, and ends on your death.
- Is often used for a set task or period, such as while you are overseas.
Enduring power of attorney.
- Covers the same decisions.
- Continues to have effect if you later lose capacity. It ends on your death.
- Gives your attorney no authority until the attorney accepts the appointment by signing the document.
- Must be witnessed by a prescribed witness.
An attorney in NSW cannot make health, medical or lifestyle decisions for you.
If your attorney will deal with land in NSW, the power of attorney must be registered with NSW Land Registry Services.
Who can witness an enduring power of attorney
The witness must not be an attorney under the document. Prescribed witnesses include:
- A solicitor or barrister.
- A registrar of the NSW Local Court.
- A licensed conveyancer who has completed an approved course.
- A qualified overseas legal practitioner.
- An employee of NSW Trustee and Guardian or a trustee company who has completed an approved course.
The witness signs a certificate stating that they explained the effect of the document to you before you signed, and that you appeared to understand it.
Appointing an enduring guardian
An enduring guardian is appointed under the Guardianship Act 1987.
- Your enduring guardian makes decisions in the areas you choose, such as where you live, your health care, and medical and dental treatment.
- The appointment only starts when you are unable to make those decisions yourself.
- An enduring guardian cannot make decisions about your money or property.
- The appointment must be witnessed by an eligible witness, such as an Australian legal practitioner or a Local Court registrar.
- You cannot appoint a person who provides you with medical or accommodation services for fee or reward.
What happens if you have neither
If you lose capacity and have no enduring power of attorney, a court or tribunal may appoint a financial manager under a financial management order.
If you have no enduring guardian and a decision is needed, a person concerned for your welfare can apply to the NCAT Guardianship Division. NCAT may appoint a private guardian, or the NSW Public Guardian where no suitable person is available.
For medical treatment, a doctor may first ask your "person responsible", such as a spouse, unpaid carer or close relative or friend.
These applications take time. The person appointed may not be the person you would have chosen.
Where people get caught
The document is signed after capacity is lost
You must have capacity when you make these appointments. Leaving it too late can mean an NCAT application instead.
The attorney does not sign an acceptance.
An enduring power of attorney gives no authority until the attorney accepts by signing.
The wrong person witnesses the document.
A friend or neighbour cannot witness an enduring power of attorney or an enduring guardian appointment. A prescribed or eligible witness is required.
The power of attorney is used to sell land without registration.
It must be registered with NSW Land Registry Services before the attorney deals with land.
The attorney is expected to make medical decisions.
An attorney cannot. You need an enduring guardian for health and lifestyle decisions.
Common questions
Can I appoint more than one attorney?
Yes. You can appoint attorneys to act jointly, where all must agree, or jointly and severally, where they can act together or alone.
Can I cancel a power of attorney?
Yes, while you have capacity, by notifying your attorney in writing. If the document was registered, a revocation should also be registered.
Who can review an attorney's or enduring guardian's conduct?
The NCAT Guardianship Division can review an enduring power of attorney and an enduring guardian appointment.
Does an enduring guardian replace my will?
No. An enduring guardian acts only during your life. Your will deals with your estate after death.
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