Enduring power of attorney checklist - NSW

Think about each point before you start to complete your Enduring Power of Attorney. form and make notes of your preferences, questions and decisions.

Tick the boxes once you’ve completed each step.

Please be aware this checklist is not a substitute for legal advice.

1. Get ready

Knowing as much as possible about an Enduring Power of Attorney (EPOA) before you start to make one will make the process easier.

• Compass – Introduction to enduring power of attorney

• NSW Government – Enduring power of attorney

• NSW Land Registry – Powers of attorney fact sheet

• NSW Trustee & Guardian – What is a power of attorney?

If you’re unsure about any of these, visit the Compass ‘Helpful terms to know’ webpage or NSW Government ‘Glossary of terms’ page.

• Principal (you, the person making the power of attorney)

• Attorney (the person you appoint under a power of attorney to make decisions for you)

• Capacity or mental capacity (your ability to understand facts about your decisions, weigh up the consequences—i.e. the risks and benefits—of making decisions, and communicate consistent choices

• General power of attorney (a legal document that authorises an attorney to make legal and financial decisions on your behalf while you still have capacity)

• Enduring power of attorney (a legal document that authorises an attorney to make legal and financial decisions on your behalf if you lose capacity)

• Jointly (if you appoint two or more attorneys, you can stipulate that they must all make your decisions together)

• Jointly and several (if you appoint two or more attorneys, you can stipulate that they can make your decisions either on their own or together)

• Vacates office (when your attorney no longer acts as your attorney)

• Prescribed forms (forms that the Powers of Attorney Regulation 2016 says should be used to make a power of attorney in NSW)

• Revoke (cancel)

• Compass – Powers of attorney in New South Wales

• NSW Land Registry – Powers of attorney in New South Wales fact sheet

• NSW Trustee & Guardian – What is a power of attorney?

• If so, an EPOA is the right option for your needs.

• If you want your legal and financial decisions to be looked after while you still have capacity (for example, if you are in hospital or travelling overseas), you should make a GPOA.

Enduring Guardians

Find out how guardianships work for older Australians and who can be involved and where they apply.

More information

• An enduring guardianship authorises someone that you nominate (your ‘guardian’) to make lifestyle or medical decisions for you. (Read more about enduring guardianships on the NSW Trustee and Guardian’s ‘What is an enduring guardianship?’ webpage.

• You can appoint an enduring guardian yourself, and you will need to set up your enduring guardianship separately from your EPOA. For information and instructions, visit the NSW State Government website or the NSW Trustee and Guardian website.

• If something happens to make a guardianship necessary and you haven’t already appointed a guardian, one can be appointed for you by the NSW Supreme Court or the NSW Civil and Administrative Tribunal.

• An advance care directive is a record you can make of the health care treatments you’d like to have, or refuse to have, if you become unable to make the decisions yourself at the time. Find out more on the NSW Health website.

If you’ve ticked all those boxes, you should feel confident you have all the information you need.

Move on to the next section.

• You are over 18 and

• you understand the effect of making a power of attorney and

• you currently have capacity to make your own legal and financial decisions.

There is a lot of support and assistance available to people who are making their EPOAs. The next list will help ensure that you know who you can contact for advice and help.

• If you don’t currently have a solicitor, you can find one by searching on the ‘Register of solicitors’ page on the Law Society of New South Wales website.

• LawAccess NSW (a free legal information service)

• Seniors Rights Service (an advocacy service for seniors)

• Legal Aid NSW

• NSW Trustee & Guardian

• NSW Civil and Administrative Tribunal

• Multicultural NSW (a State Government department)

• LawAccess NSW’s telephone interpreter service (phone 131450)

• NSW Communities & Justice’s Diversity Services section

Now you should be ready to start making your EPOA.

2. Get started

The best way to make your EPOA is to complete an official form that is available from the NSW Land Registry website.

• You must use the most recent version of the form (currently September 2013) when you make your EPOA. If you wait a while before filling in the one you downloaded, check the Land Registry website again to make sure there isn’t a newer version.

Before you start filling in the EPOA form, read through it and the fact sheet. The form includes explanations and tips to help you complete it, but you may still think of questions you want answered. Write down any questions you have if they’re not answered in the fact sheet.

• Compass ‘Powers of attorney’ webpage

• NSW Civil and Administrative Tribunal

• NSW Trustee & Guardian

• LawAccess NSW

• Seniors Rights Service

• your solicitor

• your accountant

• trusted family members

• close friends whom you trust.

You’ll need to decide who you’d like to be your attorney(s). Remember that in NSW you can appoint more than one attorney, and you can also have substitute attorneys as a back-up in case an appointed attorney vacates office. To appoint someone as an attorney or a substitute attorney, you must obtain their written acceptance of the role in the EPOA form.

• Family members (it doesn’t have to be your closest relative, if you don’t believe they are suitable)

• Close friends

• Neighbours

• Your partner (however, you should consider their own age and decision-making capacity; read more about partners as attorneys here)

• NSW Trustee & Guardian

• A trustee company

• Your solicitor

• Your accountant

• They are over 18 years old.

• They are not bankrupt.

• You trust them.

• Compass ‘Being an attorney’

• NSW Land Registry ‘Powers of attorney in New South Wales’ fact sheet.

• If the person you’ve chosen doesn’t agree, consider someone else and talk to them about it.

• If they do agree, they will need to sign your completed EPOA form at clause 7.

• Do you want the attorneys to act ‘jointly’ (together) or ‘jointly and severally’ (either together or alone) for you? (You’ll indicate this on the form in clause 1.)

• Do you want each attorney to notify the others whenever they make a transaction or decision for you?

• Remember, you will already have lost capacity for your EPOA to be in effect, so if your attorney vacates office, you won’t be able to say then what you want to happen. You need to decide it now.

• You’ll be able to indicate on the EPOA form what you want to happen.

• Do you want your EPOA to end, or to continue without the attorney? You can nominate substitute attorneys as a back-up, and they can step into the role for you.

• If you decide to nominate substitute attorneys, you’ll indicate this in clause 1 of the EPOA form and state whether they may act ‘jointly’ or ‘jointly and severally’.

Next, decide on the details of your EPOA and how you would like it to work for you.

• real estate – selling your property, renting out your house

• paying bills – anything from buying groceries to paying for aged care services (think about what bills you pay now)

• arranging for aged care services

• managing any investments you may have

• taking money out of your bank accounts.

Should your attorney notify someone (e.g. your lawyer, your bank) that the EPOA is taking effect before they make any of your decisions?

• Do you authorise for your attorney to give gifts from your finances?

• Can your attorney use your money for their own benefit or that of someone else (e.g. your children), such as paying for rent, food, education or medical care?

• Is there anything else you’d like to authorise?

• You could require them to submit accounts to your accountant every year.

• When your doctor decides that you have ‘lost capacity’?

• When your attorney believes that you need help with managing your affairs?

• Do you want to instruct your attorney to get an independent assessment of your capacity before they start making any decisions for you?

Once you have thought through all your preferences and found answers to your questions, you should be ready to fill in the EPOA form.

3. Complete the form

The EPOA form is in PDF format. You can complete the form on your computer if you have a PDF-editing program, such as Adobe Acrobat Reader (a free program—download from the Adobe website). Otherwise, you can print the form and fill it in by hand with a pen.

If you are completing the form on paper, you might like to think about printing two copies: one as a draft that you can change and make mistakes on, the other to become the final, unaltered copy.

• Fill in your full name and address on the first blank lines, then the name and address of your attorney on the second set of blank lines. If you are appointing a second attorney, fill in their name and address on the third set of blank lines.

• If you are appointing more than two attorneys, use extra copies of page 1 of the form and add them to the main form. If not, cross out the third set of blank lines with a ruler.

• Once you are sure your entries are correct, sign your initials on the bottom of page 1.

• Indicate whether you want your attorneys to act ‘jointly’ or ‘jointly and severally’, and whether the EPOA is to end if an attorney vacates office.

• Rule a line through the options that you don’t want to apply.

• If you would like to nominate a substitute attorney(s), complete the rest of page 2.

• If you would not like to nominate substitute attorney(s), rule a line through the ‘Nomination of substitute attorney’ section.

• If you want to give your attorney any of the additional powers listed under clause 2, ‘Powers’, tick the relevant box.

• If you are authorising the living and medical expenses of another person to be met (in the third option), provide the full name(s) and address(es) of each person in the blank lines.

• If you do not want to authorise any additional powers in clause 2, rule a line through the text—from ‘Additional powers (optional)’ down to the solid line above clause 3—and the blank lines.

• In clause 3, ‘Conditions and limitations’, you may—but do not have to—record details of any limits or conditions that you want to place on what your attorney is authorised to do. (See the explanatory text in the grey column to the left of the form for examples.)

• If you do not want to record any conditions or limitations, write NIL in the blank lines.

• In clause 4, ‘Commencement’, tick one box to indicate when your EPOA is to take effect. (If you choose ‘Other’, use the blank line to specify the details that you want.)

4. Sign and witness

You must sign your EPOA in front of a ‘prescribed witness’. This can only be a solicitor, barrister, local court registrar, licenced conveyancer, or authorised employee of the NSW Trustee & Guardian or of a trustee company. Your attorney cannot be a witness to your signature.

• At the appointed time, sign and date your EPOA at clause 5 in the presence of the prescribed witness. Do not sign your EPOA alone or in the presence of someone else who is not a prescribed witness.

• The prescribed witness should sign your EPOA at clause 5 and fill in their name and address.

• The prescribed witness should explain the effect of the enduring power of attorney to you and be satisfied that you understand their explanation before they complete the certificate at clause 6.

• The form has spaces for two attorneys to sign their acceptance. If you have more than two attorneys, print or photocopy enough blank copies of page 5 for every attorney to sign, and attach the additional pages to your EPOA behind page 5.

Your EPOA form is complete! There are a few more steps to finalise it.

Once your EPOA has been correctly witnessed, the last step is to decide where to keep it.

5. Register and store

You can register your completed and witnessed EPOA with NSW Land Registry Services. Some EPOAs must be registered (see below). A fee applies for registration.

Registration ensures there is a record of your wishes and that the document is safe from loss or destruction. It also provides acceptable evidence that your attorney is authorised to deal with your legal and financial affairs, if there is ever any doubt.

• If ‘yes’, you must register the EPOA with NSW Land Registry Services.

• If ‘no’, you can choose to register it.

• You may be able to lodge your EPOA by post if you are unable to go to the Land Registry offices in Sydney or have someone go for you. Find out if you are eligible to post your EPOA here.

• Pay the applicable fee when you lodge your form. Find the fees here.

• Keep at least one certified copy for yourself in a safe place at home—perhaps with your will and other important papers.

• Give certified copies to your attorney(s).

• Give certified copies to other relevant people, such as your solicitor, bank, accountant, family members and trusted close friends.

• You might like to keep a copy of this checklist with the certified copies of your EPOA.

And finally …

• Circumstances and relationships change, so it’s wise to review your plans regularly and make adjustments if needed.

Sometimes things change, and you may decide later that you want to appoint a different attorney, alter the preferences that you recorded in your EPOA, or revoke (cancel) your EPOA completely.

6. Changing or revoking

In NSW, you may change or revoke your EPOA at any time as long as you still have capacity.

• Has your attorney become bankrupt, lost mental capacity, died or changed their mind about being your attorney? (This is known as ‘vacating office’.)

• Has your good relationship with your attorney changed, or do you have doubts now that the person you nominated will act in your best interests?

• Will someone else now be better to handle your financial decisions for you?

• Have your financial circumstances or living arrangements changed?

• How do you now want your future decisions to be made if you should lose capacity?

• Compass, ‘Powers of attorney in New South Wales: can I change or cancel my power of attorney?'

• NSW Land Registry, ‘Powers of attorney in New South Wales’ fact sheet.

Now you should be prepared to make the changes that you want.

Do you want to revoke an existing EPOA? You must do this in writing.

• You can write a letter, or you can use forms provided by the Land Registry.

• There’s a manual form that you can print out and fill in with a pen.

• Alternatively, you can use the interactive PDF form available on the Land Registry website, complete it onscreen and save it to your computer.

To change an existing EPOA, you must revoke the previous one and issue a new one.

• You can write a letter, or you can use forms provided by the Land Registry.

• There’s a manual form that you can print out and fill in with a pen.

• Alternatively, you can use the interactive PDF form available on the Land Registry website, complete it onscreen and save it to your computer.

Finally …

Disclaimer: The information provided on this website is not a substitute for individual legal advice.