What is an enduring Power of Attorney

A power of attorney is a document executed by a person (called the principal) appointing another (called the attorney) to permit the attorney to execute any document or do anything which the principal can legally do, subject to the provisions of the Powers of Attorney Act 2003. An attorney so appointed can, for example, buy and sell real estate in the principal’s name, access and withdraw money from the deceased’s bank account or transfer the principal’s shares. 

One might appoint an attorney for a variety of reasons. 

The appointment may be out of convenience or efficiency with many organisations appointing one or more attorneys to execute documents on their behalf. 

The appointment may be out of necessity, for instance, if leaving the country appointment of an attorney will allow the attorney to access money and pay bills from the principal’s account.

The appointments in the above examples will usually operate for a defined period, and if not, will cease to have effect if the principal loses the mental capacity to make decisions. 

In most instances the very reason to appoint an attorney will be to allow the attorney to control your financial dealings in the event that you lose mental capacity to make those decisions for yourself. 

A Power of Attorney which endures after the point the principal has lost mental capacity is called an ‘Enduring Power of Attorney’. The Enduring Power of Attorney must be executed while the principal has the capacity to make decisions but can be drafted to take effect only at that point in which the principal has lost capacity.

Unlike a General Power of Attorney the Enduring Power of Attorney:

1. Must be expressed to be given with the intention that it will continue to be effective even if the principal has lost capacity;

2. Must be witnesses by a prescribed witness (such as a solicitor); and 

3. Must have endorsed on or annexed to the document a certificate signed by the witness stating that:

(i) The witness explained the effect of the Enduring Power of Attorney, and

(ii) The principal appeared to understand the effect of the Enduring Power of Attorney, and

(iii) The witness is a prescribed witness, and

(iv) The witness is not an attorney under the Enduring Power of Attorney, and

(v) The witness witnessed the signing of the Enduring Power of Attorney by the principal. 

If you would like to appoint an attorney, whether that appointment is to be in the form of an Enduring Power of Attorney or not then get in touch with your nearest Prime Lawyers office to meet with one of our team.  

We have power of attorney lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.