Whether you’re considering nominating someone or just want to know your rights, navigating the legal landscape around Power of Attorney can feel daunting. In this article, our team answer some of the most common questions we receive regarding Power of Attorney.
What is a Power of Attorney?
A Power of Attorney is a legal document which gives a person power to make financial and legal decisions on behalf of another person (called the “Principal”). For example, a Power of Attorney can pay bills, access bank accounts, buy property, and sign legal documents on behalf of the Principal.
A Power of Attorney cannot make health and lifestyle decisions on behalf of the Principal. The Principal can nominate an Enduring Guardian to do this.
There are two types of Power of Attorney:
- “General Power of Attorney” – this gives someone Power of Attorney while the Principal still has capacity to make decisions. This power ends once the Principal loses capacity.
- “Enduring Power of Attorney” – this type of Power of Attorney continues even after the Principal loses the capacity to make decisions.
What is capacity?
Capacity refers to the ability to make and communicate decisions, having regard to relevant facts and possible outcomes.
You are only able to nominate a Power of Attorney or Enduring Guardian if they have capacity. If capacity is in question, you may need to be assessed by a doctor. They can undertake a ‘capacity assessment’.
Who should I nominate to be Power of Attorney?
You should only nominate a person you trust as Power of Attorney. They should also be:
- Over 18 years of age;
- Capable of making financial decisions and keeping records of transactions;
- Able to thoughtfully evaluate decisions and alternatives; and
- Someone who will consider your circumstances, avoid conflicts of interest and act in your best interests.
More than one Power of Attorney can be appointed. For example, Attorneys can be nominated to act:
- Jointly – This means the people nominated as Power of Attorney must act together when making decisions.
- Severally – This means each Power of Attorney is responsible for making decisions independently within their own designated areas
You should talk to the person or people you would make your Attorney to make sure they agree to act for you. They will need to sign the appointment document.
If there is no one available whom you would like to appoint as Attorney, you may appoint the NSW Trustee and Guardian to be your Power of Attorney.
What are the duties of a Power of Attorney?
A Power of Attorney must:
- Make decisions that you would have made in the circumstances and consider your wishes and preferences.
- Act in your best interests and manage your affairs responsibly.
- Keep accurate records of all transactions and dealings
- Not use your money for their own benefit or in any way that creates a conflict of interest.
- Act honestly and in good faith.
- Encourage you to participate in decisions and in the community, insofar as possible.
- Protect you from neglect, abuse and exploitation.
How do I appoint a Power of Attorney?
To appoint a Power of Attorney, you will need to complete a form.
This form will specify who you are appointing, what decisions you would like them to make and lists any decisions they are not allowed to make. You should seek legal advice before appointing a Power of Attorney.
The NSW Trustee and Guardian can assist with drafting a Power of Attorney document for a fee. People receiving the Age Care Pension may access this service free of charge. You can find further information about this on their website.
What if I no longer want a person to be my Power of Attorney?
You may revoke your Power of Attorney at any time provided you have capacity. You should do this by writing a letter to the Attorney which states that you are cancelling the Power of Attorney.
You should also provide a copy of the revocation letter to any person or organisation with a copy of the Power of Attorney. Please seek further legal advice about this if required.
Information accurate as of 7th April 2026. The information above is not legal advice. If you have a legal issue, please get specific legal advice.
