Power of attorney

A power of attorney is an important legal document that allows you to appoint another person to manage and make financial decisions on your behalf. You may want to get independent legal advice before appointing an attorney.

If you need a power of attorney document witnessed, the registrar at the local court is an authorised witness, however, can only witness documents in some circumstances. You will need to make an appointment and you will need to complete the form before you attend, the registrar cannot complete the forms or give you legal advice.

If you need assistance with a complex power of attorney you will need to contact a solicitor.

What is a power of attorney?

A power of attorney is a very important and powerful legal document that you can sign to appoint another person to act on your behalf in relation to your property and financial affairs. The person you appoint should be someone you can trust as any action they take will be lawfully binding on you. The person you appoint must be over the age of 18 years.

For the purpose of power of attorney, you are called the Principal, and the person you appoint to act on your behalf is called your Attorney.

There are two main types of power of attorney:

• a general power of attorney ends when you lose the capacity to make your own decisions
• an enduring power of attorney continues even after you lose the capacity to make your own decisions.

A power of attorney cannot be used for health or lifestyle decisions (such as medical treatment). You should appoint an enduring guardian if you want a particular person to make these decisions.

Do you need a power of attorney?

If you are uncertain about whether you need a power of attorney, you should get legal advice from a solicitor. Staff at the local court cannot provide you with legal advice. A solicitor can also give you advice about what conditions you may want to put in the power of attorney.

Where to get forms

You can download a Power of Attorney form from the Land Registry Services website or you can purchase a 'Prepare your own Enduring Power of Attorney and Enduring Guardianship Pack', which are available at post offices.

Witnessing enduring powers of attorney

An enduring power of attorney is witnessed by a prescribed witness. The Powers of Attorney Act 2003 provides a list of prescribed witnesses including:

• a barrister or solicitor
• employees of the Public Trustee
• licensed conveyancers
• a registrar of a local court – contact the local court to make an appointment if you want a registrar to witness.

The prescribed witness is required to do certain things before signing, including:

• explain the effect of the power of attorney to you, and
• certify that you appear to understand the effect of the power of attorney
• witness you signing the power of attorney.

The person you appoint as your attorney will then need to accept the appointment by signing the form.

Proof of identity

If you have made an appointment at the local court for a registrar to witness an enduring power of attorney, you will need to bring suitable identification for the registrar to confirm who you are.

Do you need to register a power of attorney?

No. However, if the person you appoint as your attorney needs to deal with any real estate in New South Wales, the enduring power of attorney must be registered with the Land and Property Services NSW.

You can also register a power of attorney in the General Register of Deeds at Department of Land and Property Information for safe keeping. There is a registration fee payable.

Need more information?

There are many publications available. For more information refer to:

• NSW Land Registry Services – nswlrs.gov.au
• NSW Trustee and Guardian – tag.nsw.gov.au
• NSW Civil and Administrative Tribunal – ncat.nsw.gov.au
• Department of Ageing, Disability and Homecare – adhc.nsw.gov.au.