A Power of Attorney (POA) is a document used to allow someone to act on your behalf – as if you had done the act yourself. You can choose or nominate a person to do this for you, for either general or for specific acts. Commonly, a POA is used to deal with real estate, financial affairs and assets but can also be given for something very specific, such as buying a used car for you.
Legal issues covered in this guide
Click on any of the questions below to jump to that section of this legal guide.
- The Basics
- Using a Power of Attorney
- Nominating Attorneys
- Signing, Witnessing and Registering
- Starting, Ending and Revoking
If after reading this guide you still have a question, get in touch as we’d love to keep adding your questions to this comprehensive guide.
What is a Power of Attorney?
A Power of Attorney is a document that authorizes someone else to act on your behalf. This legal agreement is made by one person (called the ‘Grantor’) allowing another person (called the ‘Attorney’) to do things with the Grantor’s money, bank accounts, shares, real estate and other assets.
A POA is also sometimes called a General Power of Attorney to differentiate it from an Enduring Power of Attorney.
What is an Enduring Power of Attorney
An Enduring Power of Attorney is designed to be used if you become mentally or physically incapacitated. Under such circumstances an Enduring POA will allow your Attorney to make personal, financial and health decisions for you.
What is the difference between a Power of Attorney and an Enduring Power of Attorney?
A Power of Attorney (or General Power of Attorney) will not be effective if the Grantor loses mental capacity.
A General POA is a legal document that gives the power to another person to manage the Grantor’s affairs in relation to financial matters, including property. It is helpful when you require someone else to do things on your behalf because you are either not physically able (traveling, confined to a hospital, etc.) or prefer to have them act in their capacity under your direction. It does not give an Attorney the power to make personal decisions (including medical) on behalf of the Grantor and is often for a specified period of time.
An Enduring Power of Attorney continues to operate after the Grantor has lost mental capacity.
An Enduring POA is in the same format as a General POA but has additional requirements, such as stating continuation of the authorization of power to the Attorney after loss of mental capacity by the Grantor, and actual acceptance by the Attorney of this power.
Follow this link for more information and to download an Enduring Power of Attorney.
What do the terms ‘Grantor’ and ‘Attorney’ mean?
A ‘Grantor’ is a person who makes a Power of Attorney. This POA gives someone else, the ‘Attorney’, the authority to look after his/her financial affairs and assets. The ‘Grantor’ can also be called the ‘Principal’ or ‘Donor’.
The word ‘Attorney’, used in the term Power of Attorney form, does not mean that the person appointed has to be a solicitor or lawyer. The person appointed as ‘Attorney’ can be anyone over the age of 18 who is able to make decisions and assist the ‘Grantor’ with financial or property affairs and could be a relative, friend, professional or adviser. But above all, the ‘Attorney’ should be someone you trust to look after your affairs and act in your best interests.
Using a Power of Attorney
When can I use a POA?
You may need someone else to do things for you if you:
- Become ill or infirm
- Are confined to hospital or bed
- Traveling or on holiday
- Working overseas
- Become unable to go to the bank or government offices, etc.
You can nominate someone to act on your behalf by giving them the authority with a Power of Attorney document. They will then be able to look after your financial and other affairs in accordance with your directions (and any restrictions) stated in the POA form.
What kind of documents can be signed using a Power of Attorney?
You can give power to another person to sign documents relating to:
- Buying and selling shares
- Executing real estate transactions
- Buying and selling cars and other assets
- Any financial document, etc.
You can also give power to another person to do anything necessary in relation to ‘acting’ on your behalf such as:
- Paying bills and collecting mail
- Opening and managing a bank account
- Managing various personal assets
- Paying taxes, etc.
Do I need a Power of Attorney with my Will?
No, a POA has nothing to do with your Will and each document is completely separate and each do different things.
Generally speaking, a Will outlines what you want done with your estate after your death, names the Beneficiaries who will receive part of your estate and also appoints the Executors who will be in charge of administering your Will and ensuring your wishes are carried out.
A Power of Attorney ceases to exist upon your death. It has no bearing whatsoever on your Will. A POA is valid while you’re alive; a Will doesn’t become valid until your death.
How do I limit the scope of a Power of Attorney?
A Power of Attorney can be a broad and powerful document or it can be very specific and limiting to the person granted the power to act on your behalf. In other words, you can limit the power of another person to sign a single document on your behalf or you can give them an ‘open’ power to sign anything or any number of documents in order to get a particular outcome/transaction achieved or finalised.
Are there any limits to the acts nominated in a Power of Attorney?
You cannot have another person perform your civil duties under a Power of Attorney. That is, you cannot ask another person to:
- Vote on your behalf
- Attend jury duty
- Take your place in a court appearance, or
- Go to jail for you
In addition, you cannot permit another person to make medical decisions on your behalf, unless this is done by an Enduring Power of Attorney.
Who can I nominate to act on my behalf?
You can nominate any person over the age of 18 to act as your Attorney. You should choose someone you trust to look after your money and property. You can choose a family member, relative, friend or a professional such as a financial or legal adviser.
You can also choose more than one person who may sign or act “jointly” (i.e. all sign or act together when they all agree) or to act “jointly and severally” (i.e. any one Attorney can act independently of the others).
Can multiple people act on my behalf?
You can choose one person or more than one person to act on your behalf. If you appoint more than one person to act on your behalf, you will need to indicate on your Power of Attorney form whether you want your Attorneys to act:
- “Jointly” or
- “Jointly and Severally”
“Jointly” means your Attorneys must be agreed and act together. Only when all your Attorneys agree and sign any document together will it be valid. You might wish to use this option with financial matters and avoid any disputes over money.
“Jointly and Severally” means your Attorneys can act together or alone (i.e. independently of the other Attorneys). So any document signed by just one of your Attorneys will be valid. You might wish to use this option if your nominated Attorneys are in different States or overseas and it is not practical for them to sign together.
What risks are there in writing a Power of Attorney?
There are risks, but they can be mitigated or minimized. The more specific you are in explaining or nominating what you want your Attorney to be empowered to do on your behalf, the less chance you have of any problems. You should be very confident in the person you choose as your Attorney. You must trust this person and ensure that they understand clearly what their powers are. If they have to make any decisions, for example, on the purchase of real estate, cars or other assets where they have discretion, you need to be comfortable that they will make a decision you are happy with.
When dealing with financial institutions or businesses, you are safer to take a copy of your POA form into the bank or business office prior to your departure or absence, so that they are clear about your intent in granting the power to your Attorney. Most institutions are familiar with Powers of Attorney but it is best to be safe, particularly where your finances are concerned.
Please note, some financial institutions may have their own requirements regarding Power of Attorney forms – so it’s best to check beforehand.
Do I need to get legal advice before writing a POA?
No. If you understand and are confident your Attorney understands what authorities you are giving them then there is no need to obtain legal advice. However, if your circumstances are complex or large sums of money are involved it is recommended that you get legal advice.
We’ve written an extremely easy-to-use POA Form. It has a minimal number of inputs, is written in plain English with no legal jargon and comes as an easy PDF form. Get the Legal123 Power of Attorney Form here.
Signing, Witnessing and Registering
Does a Power of Attorney need to be in writing?
Yes. It is an important and powerful document giving an authority to another person to look after things you have nominated. So the Attorney knows what they are empowered to do precisely and to ensure the safety of this power, the Power of Attorney form must be in writing.
How do I sign a Power of Attorney?
You need to sign (or “execute”) your Power of Attorney form for it to take effect. You must do this in front of a witness. This witness can be anyone over the age of 18 who should also sign the Power of Attorney form to confirm they saw you sign the document. They do not need to read the document as they are only signing that you are the person they saw actually sign the Power of Attorney form.
Does a Power of Attorney need to be witnessed?
A Power of Attorney is a powerful document that gives the authority to someone else to look after the affairs nominated. It is therefore important to ensure that you, and not another person, have signed it. To give some formality and ensure it is you signing over this power to another person, it is important that you are witnessed signing the document.
The witness does not need to read or understand the document, they only need to see you sign it. The witness needs to be over the age of 18 and they should provide their residential or business contact details under their signature. The witness cannot be the Attorney.
Does my Power of Attorney need to be registered?
You only need to register your Power of Attorney document if your Attorney is going to deal with your real estate. For example, if you want your Attorney to sell, lease, mortgage or do anything related to your real estate assets, you need to register your Power of Attorney form with the local Land Titles Office in your State in Australia. Otherwise, you do not need to register it.
You may choose to register it for the benefits of ensuring it is on record as a public document, for safekeeping and also to be more easily accepted by the various offices and financial institutions as evidence of your intentions. However, this is not a requirement.
How do I register my Power of Attorney?
If you want to register your Power of Attorney in Australia, you need to do so at the Land Titles office in your State. Your Power of Attorney form will be stamped with a number and the original Power of Attorney form will be returned to you. This is evidence of the registration and will identify your document.
Your Attorney should use this number when they sign documents on your behalf. Your POA form will be scanned and available on public record for anyone to see, including financial institutions for evidence of your intentions.
The New South Wales Land Registry Services is located at 1 Prince Albert Road, Queens Square, Sydney NSW 2000. You will need to take the original and a photocopy to the office. On arrival, go first to the information desk to obtain a lodgment form to fill in before receiving a number to register your Power of Attorney. You will also have to pay the registration fee which is $146.40 (including GST, 2020/2021).
In which Australian States is my Power of Attorney valid?
If you want to use a New South Wales Power of Attorney outside NSW, you will need to check that State’s requirements. You should do this for both Powers of Attorney and Enduring Powers of Attorney. Some Australian States have different requirements for different Powers of Attorney so it is best to check first.
Starting, Ending and Revoking
When does a Power of Attorney start?
Your Power of Attorney can start whenever you want. You can nominate a date in the future. Alternatively, if no date is stated, the Power of Attorney commences once it is signed by you.
When does a Power of Attorney end?
A Power of Attorney can end in a number of ways:
- On a nominated end date
- Once any specified documents have been signed
- When a nominated act has been completed, or
- When a Notice of Revocation has been signed and either given it to the Attorney or, if the Power of Attorney form is registered, when you register the Notice of Revocation
The Notice of Revocation is a formal notification that you no longer want the Power of Attorney to be in effect. To be safe, you should also give a copy of the Notice of Revocation to any authority, bank or other agency (e.g. Land Titles Office) who may have received or seen your Power of Attorney form. A standard Notice of Revocation is included in our Legal123 Power of Attorney package.
Important note: A Power of Attorney is only good for as long as you have the capacity and ability to handle your own affairs. As long as you have capacity, you can review the actions of your Attorney at any time. After you lose this ability, in other words, once you become incapacitated, a General Power of Attorney is no longer valid and the person you appointed loses the power to act for you.
When should I revoke my Power of Attorney?
If the acts or documents that you stated in your Power of Attorney form were not completed or actioned (e.g. you came back from overseas and nothing was actioned on your behalf), we recommended that you sign and deliver a Notice of Revocation to your appointed Attorney(s).
However, if you have lodged your Power of Attorney form with any authority, bank or other agency (e.g. Land Titles Office), you will also need to deliver the Notice of Revocation to those offices. This ensures they know you are now able to sign or complete the act yourself and no longer require another person to sign on your behalf.
We hope you found this guide on How to Write a Power of Attorney helpful.