Powers of Attorney
What is a Power of Attorney?
A Power of Attorney is a legal document in which you appoint the person or trustee organisation of your choice to manage your assets and financial affairs while you are alive. You may, for instance, be travelling overseas and want to give your attorney access to your bank accounts to pay your bills or manage your finances. Alternatively, it can be useful to have a Power of Attorney if you become unwell and are no longer able to manage your financial affairs. You can make an Enduring Power of Attorney which will continue to have effect after you have lost your capacity to self-manage.
Making a Power of Attorney does not mean that you will lose control over your financial affairs. It simply gives your attorney formal authority to manage your financial affairs according to your instructions. Your Power of Attorney can be revoked at any time provided you have the capacity to do so.
A Power of Attorney only deals with property and financial matters, and enables your attorney to sign legally binding documents on your behalf. It does not give someone the right to make decisions about your lifestyle, medical treatment or welfare: these decisions are covered by Enduring Guardianship.
A Power of Attorney ceases when you die. The executor named in your Will then takes over the responsibility of administering your estate.
Why have a Power of Attorney?
A Power of Attorney enables your financial affairs to be managed according to your wishes when you are unable or do not want to conduct them personally – such as when you are ill, travelling or simply do not wish to be burdened with the day to day management of your financial affairs.
You can use a Power of Attorney for almost any financial purpose. For example, you can authorise your attorney to collect debts, vote at meetings, operate your bank account, manage your investments or carry out any other function which can be lawfully delegated.
Should you no longer be able to manage your financial affairs and you don’t have an Enduring Power of Attorney, the Guardianship Tribunal may have to appoint a financial manager to make these decisions for you. This involves a formal hearing where evidence will be heard to assess if you have lost legal capacity and whether you need to have someone appointed to make decisions on your behalf. If the Guardianship Tribunal decides that you need someone to make decisions about your finances and legal affairs, they will appoint a financial manager. While they have an obligation to take your views into account, the ultimate decision rests with the Tribunal.
The person or organisation appointed as your financial manager will not necessarily be who you would have chosen. This may be stressful for those involved and can cause considerable conflict and anguish among family and friends concerning who is appointed to make decisions on your behalf. By making an Enduring Power of Attorney, you are ensuring that the person or organisation you nominate to manage your financial affairs is what you want.
Case Study:
Your partner gets Alzheimer’s disease and you decide that you want to sell the family home and buy a smaller home closer to amenities. The family home is in both your names. Since your spouse no longer has the mental capacity to sign documents and you do not have their Power of Attorney, your only option is to apply to the Guardianship Tribunal to appoint you as your spouse’s financial manager in order to sell your home. You may then sell your home and purchase the smaller home closer to amenities after obtaining the consent of the Protective Commissioner. The Protective Commissioner will supervise your role as your partner’s financial manager and must consent to all important decisions. It would have been far simpler if your partner had made an Enduring Power of Attorney.
How do I make a Power of Attorney?
Making a Power of Attorney involves a formal document which gives someone else the authority to make financial decisions on your behalf. The process works like this:
- You sign a form appointing as an attorney the person or trustee organisation of your choice
- You may specify the types of decisions that your attorney will be able to make
- Your attorney agrees to their appointment by signing the acceptance section of the form
While printed Power of Attorney forms are available from places such as your newsagent, it is recommended that you seek advice from a lawyer who will normally charge an hourly rate or a fixed fee. You can also see the Public Trustee who would generally wish to be appointed attorney along with your spouse or partner. Your Power of Attorney is an important legal document and it is important to have it tailored to meet your specific requirements, especially where you intend it to be enduring.
Who can make a Power of Attorney?
In order to make a valid Power of Attorney you must be 18 years or over and have sufficient capacity to understand the nature and effect of the appointment. This means that at the time of making your Power of Attorney you understand:
- The authority your Power of Attorney will have and what sort of decisions they will be empowered to make;
- When and how your attorney will have the authority to exercise their power;
- The effect that your attorney’s actions could have on you, and;
- What options are open to you to cancel or change your attorney appointment in the future.
I have a Will: isn’t that sufficient?
Your Will ensures that your assets will be distributed according to your wishes after your death. A Power of Attorney lets you appoint someone who can manage your financial affairs on your behalf while you are alive. It is therefore important that you have both an Enduring Power of Attorney and a Will.
What is an Enduring Power of Attorney?
An ordinary Power of Attorney cannot continue to be used by your attorney after you have lost capacity to deal with your financial affairs. An Enduring Power of Attorney continues after you have lost capacity. This is important for everyone, but particularly for elderly people.
In NSW, a Power of Attorney can only apply to financial or legal matters. Matters your attorney is able to handle include receiving income, paying bills, taxation and contractual issues, investment or property management.
Should you require someone to make decisions relating to where you live, who you live with, what health care you receive, and daily issues like diet and dress, you will need to appoint an Enduring Guardian. A separate document is required to do this. The person you appoint will be able to make decisions about your lifestyle and general welfare when you no longer have the ability to do this for yourself.
Who can Witness a Power of Attorney?
Recent changes to the Power of Attorney legislation have resulted in new, more specific requirements for witnesses of an Enduring Power of Attorney. At the end of all Enduring Power of Attorney forms there is a prescribed witness certificate. This certificate can only be completed by:
- Solicitor or barrister
- Registrar of a NSW Local Court
- A licensed conveyancer who has completed an approved course under the Powers of Attorney Act, or
- An employee of Public Trustee NSW or a Private Trustee company who has completed an approved course under the Powers of Attorney Act.
The certificate states that the witness:
- explained the effect of the Power of Attorney directly to you before it was signed;
- was satisfied that you appeared to understand the effect of the Power of Attorney.
If the Witness has any doubts about your ability to understand what you are signing, they are required to take reasonable steps to confirm your mental capacity.
The witness who signs the certificate cannot be the attorney but a solicitor may be a witness.
Who should I appoint as my Attorney?
It is important to choose your attorney carefully as they will be responsible for making legal and financial decisions on your behalf. You need to be able to trust that they do not have conflicts of interest, that they can be impartial and will act in your best interests. You should feel confident that your attorney will competently make any decisions that may need to be made. Being an attorney is a demanding job which requires special skills. Your attorney should have the business and financial skills to manage your affairs properly and be capable of keeping accurate records of all dealings and transactions they undertake on your behalf.
Your attorney must agree to take on the role. Therefore, make sure you discuss your intentions to appoint them as your attorney and what it is likely to involve before making the appointment. Even though they may be someone you know well and who cares about you, they may find the role too daunting or may feel that they cannot carry it out as objectively as they should. Once you place control of your affairs into the hands of a private attorney, they have no legal obligation to report to any other person about the management of your affairs. This can leave you vulnerable to mismanagement of your affairs.
In many instances, particularly with Enduring Powers of Attorney, it is likely that, should a person be called on to act as your attorney, it will not be until some time in the future. Therefore, a friend or relative who is much older may not be appropriate to appoint under an Enduring Power of Attorney as they may not survive you or be able to take on the role when required.
Case Study:
An ageing man gave his son Power of Attorney. When the man moved into a nursing home, the son sold his father’s house and used the proceeds to pay off his own mortgage. The actions of the son were discovered only after the father died and there was little left in his estate. The other beneficiaries were left to try to recover the money that was misappropriated by the son.
What are the duties and responsibilities of my attorney?
You are able to give your attorney the power to make decisions or do anything with your property or finances that you could do yourself. These broad and general powers include selling property, managing investments and shares, and accessing cash to pay bills.
You may want your attorney to do specific things such as the paying of bills but not the selling of shares or property. A Power of Attorney can only be used in the manner granted. If your attorney exceeds their authority, legal action can be taken to protect your interests and your attorney is liable to pay compensation to you if you suffer loss as a consequence.
Your attorney is in an important position of trust and has a responsibility to always act only in your best interests. They therefore must:
- Avoid doing anything as an attorney which would mean that their interests conflict with your interests;
- Obey your instructions while you are mentally capable and any directions you make in the Enduring Power of Attorney;
- Act according to any limits or conditions placed on their authority;
- Not give gifts or give themselves or others a benefit using your finances unless you specifically authorise this. The gift given must be seen as reasonable given the circumstance;
- Keep their finances and money separate from yours;
- Keep accurate and proper records of their dealings with your finances or property.
Your attorney must also recognise your right to confidentiality, and respect your views and wishes, taking into account your existing relationships, values and culture.
What powers can I give my attorney?
You are able to give your attorney the power to make any decisions relating to your finances or property which you could do yourself. A Power of Attorney can be completely general in the powers and authority it gives or it can specify things such as paying certain kinds of bills or selling your house.
If you wish you can give your attorney the authority to give reasonably sized gifts, for example, to close friends or family on special occasions, or make donations to your favourite charities.
You can also authorise your attorney to meet the reasonable living and medical expenses of the attorney himself or herself or nominated other people. Your attorney should therefore be a person or organisation in whom you can place your trust.
Can an interstate Enduring Power of Attorney be used in NSW?
If an Enduring Power of Attorney was made in another State or Territory then it is automatically recognised in NSW. This does not apply to Enduring Powers of Attorney which were made overseas. An Enduring Power of Attorney that is made in NSW is recognised in Queensland, Victoria and Western Australia, and other States may decide along similar lines in the future.
Do I need to register my Power of Attorney?
If you want your attorney to deal with any real estate you own in NSW, then the Power of Attorney document must be registered with Land and Property Information Division of the NSW Department of Lands. Otherwise, there is no requirement for your Power of Attorney to be registered. If you choose to register your Power of Attorney it:
- Will be on record as a public document;
- May be more easily accepted as evidence that your attorney has authority to deal with your property or financial affairs.
After registration, your original document will be returned to you with a registration number stamped on it. Your attorney should use this number when signing any documents on your behalf. There is a fee charged by Land and Property Information NSW for registering your Power of Attorney.
If your Power of Attorney is registered and you later revoke it (cancel it), you should register the revocation.
Where should I keep my Power of Attorney?
It is important to store your Power of Attorney in a safe place and provide your attorney with a copy. You should also provide a copy to anyone else who needs to know its contents, such as your solicitor or accountant.
How do I revoke (cancel) a Power of Attorney?
There are many reasons you may wish to revoke a Power of Attorney. Your relationship with the attorney may have changed or your circumstances are different and the person whom you appointed is no longer appropriate for the role. You can revoke or cancel a Power of Attorney at any time providing you are capable of understanding what you are doing.
To revoke a Power of Attorney you must inform your attorney in writing that you are bringing their appointment to an end. Should you fail to inform your attorney of the revocation your attorney can legally continue to make decisions on your behalf. Your bank and any other relevant groups or businesses with which your attorney may have been dealing should be notified of the revocation. If your Power of Attorney is registered you should also register the revocation.
After revoking the Power of Attorney you should destroy the original and any copies of the attorney document you may have. A member of the Stacks Wealth Protection team will be able to assist you with any questions that you have and draft a Power of Attorney document for you.
Stacks/The Law Firm is a group of law firms which together offer a wide range of legal services throughout NSW and QLD. Each firm is an independent, incorporated legal practice but by working together, the group can offer expert legal advice at a much higher level and across a wider geographical area. Stacks/ The Law Firm is now the largest regional-based network of law practices in Australia, with 20 offices, 76 professional staff and 108 support staff.We trust our people, and believe in moving with them, rather than losing experts who wish to relocate geographically. As such, we now have experts in many different areas of law, spread right across NSW and QLD. This system of information sharing means that each lawyer is able to draw on the resources and expertise of the wider group.
User groups in each of the main areas of law have been established across the offices, which regularly come together via conference calls and face-to-face meetings to share common precedents, pool resources and collectively problem solve. This is a real benefit to individual clients, who have access to the combined knowledge and experience of several lawyers across NSW. The end result is a consistently high level of service.
Our geographic location, and the fact that each law firm in the group is of a moderate size, allow us to keep our costs down. Each firm can operate its own small practice without the financial pressure associated with running a large firm, but with access to the resources of essentially a large firm. This translates to greater value for money for you. We aim to ensure that our legal fees are always reasonable in relation to the services we provide.
The goal for the next 100 years? To have more lawyers and greater expertise than any other law firm in Australia.
Superannuation laws, rising house prices and relationship breakdowns mean that many parents need to consider how they can help their children financially. Some of the key issues that parents and children should consider before parents lend financial assistance to their children include the following.
Family Law and Bankruptcy Considerations
In the context of a relationship breakdown, a failure to correctly document a parent to child loan can have severe consequences for both the parent and the child. For example:
- A gift made by a parent to their child could be attacked as an asset of the relationship to be divided between the child and their spouse or partner.
- Federal and State Courts have the ability to view a parent to child loan as a resource of the child to be taken into account when the Court divides the other assets. Generally speaking, the more commercial in nature the terms of the loan, the more likely the Court will be to view the loan as neither an asset of the relationship nor a financial resource of the child
- In a bankruptcy context, failing to take security over the child's assets may mean that other creditors get paid before the parent.
Estate Planning Considerations
From an estate planning point of view, although loan agreements will usually state that the loan is repayable on death, the following should nevertheless be considered:
- Whether the parent would forgive the debt in their Will and compensate their other children accordingly.
- What the parent would do if the child passes away before their parent, potentially leaving a spouse/partner and/or children who are unable to repay the loan. Having security over the child's assets would give the parent flexibility to recall the loan immediately or at a later date.
- Similarly, if the loan was invested in the child's superannuation fund, the parent may find it hard to obtain repayment unless they have security over the child's assets such as real estate.
What To Do?
Where there is a risk of the child going bankrupt or suffering a relationship breakdown, or where the parent requires flexibility in the case of either the parent or child passing away, the following options should be considered:
- Loans should be acknowledged by both the child and their spouse/partner (preferably the child and their spouse/partner should enter into a Binding Financial Agreement (rather like a pre nuptial agreement)) and at least annually the child should make repayments of the principal or pay interest.
- The parent should consider taking security over the loan, such as a mortgage over real estate.
- The parent should review their estate planning documents to ensure that they put into effect their intentions in relation to the loan.
- The parent’s executors and attorneys should be alerted to the existence of the loan and their intentions concerning whether the loan is to be forgiven or repaid.
- Specific taxation advice should be sought before entering into a loan agreement.
If there is a dispute in the future, it will generally be the parent who has to prove that the loan was not a gift. An appropriately drafted loan agreement can help resolve disputes and help to prevent them from occurring.
A Stacks Wealth Protection Specialist will be able to help you draft a loan agreement, and answer any questions that you have.
