General Power of Attorney / Enduring Power of Attorney

An Attorney is an individual appointed to make all legal and financial decisions on your behalf. By appointing an individual as your Attorney, you are giving them the power to deal with your assets and make financial and legal decisions as if you were making those decisions yourself. This is contrasted to the Appointment of Enduring Guardians who are appointed to make lifestyle and healthcare decisions once you have lost capacity to make these decisions for yourself. 

A General Power of Attorney is only valid when the Principal (you) have capacity and are able to make decisions. This type of power would only be invoked if you are unable to attend to legal and financial transactions yourself; for example, if you go overseas in the middle of your purchase of property. Therefore, the Attorney will act on your behalf, signing all necessary documents and liaising with your solicitors in your place. 

An Enduring Power of Attorney is valid even when you have lost capacity due to serious illness, injury or other factors. The enduring nature of this power allows your Attorney to conduct legal and financial affairs such as access your bank accounts, pay your bills, sell and purchase assets in your name, even though you have lost capacity. It is therefore once again extremely important to appoint someone who is trustworthy and who will work in your best interests. 

Many people do not realise the importance of appointing an Attorney until it is too late. If you have lost capacity and have not appointed an Attorney under an Enduring Power of Attorney, you and your loved ones may encounter a variety of issues. Banks and legal entities will not liaise with your loved ones if they have not been appointed as your Attorney/s under an Enduring Power of Attorney. This will cause issues if you have lost capacity and are unable to manage your own legal and financial matters – for example, if access to your bank account is required to pay your bills, or if a home in your sole name needs to be sold –  no one else is able to access your bank account or manage your legal affairs if you have not appointed anyone under an Enduring Power of Attorney. Therefore, your loved ones will have to go through the stress of making an application for a Financial Management Order in the Guardianship Division of the NSW Civil and Administrative Tribunal in order to tie up your financial and legal affairs. 

We recently acted for an interstate client who was eager to move his mother in NSW to be closer to him and his family after she faced medical complications during surgery. The potential move required him to act on her behalf to arrange for accommodation, care and other matters, and as such, she needed to empower him to do so with an Appointment of Enduring Guardian and Enduring Power of Attorney. 

The client’s mother was faced with certain effects arising from the medical complications, including a language disorder. A letter of capacity was provided to our firm prior to meeting our client’s mother, however, the language disorder during the initial conference raised some concerns. Nonetheless, our firm worked with social workers to have a further capacity test done. Upon confirmation from the doctor, our firm worked with the rehabilitation centre’s speech pathologist to explain the documents and have the documents successfully executed. The move was then able to be expedited as the client’s mother was also eager to move to be closer to her son and his family.

Green & Associates Solicitors Experience and Success 

• We have successfully created powers of attorney where capacity was questionable, obtaining medical evidence to prove the effects of another illness rather than capacity;
• We have arranged powers of attorney for the most complicated commercial and property arrangements during clients’ absences overseas, including with technical and vast cross-collateral requirements;
• We have acted as appointed attorneys in a trustworthy and efficient manner for clients in times of need;
• We have successfully challenged the appointment of attorneys leading to success in property, commercial, family and litigious disputes;
• We have succeeded in difficult and technical Court / Tribunal disputes over powers of attorney.

Here at Green & Associates Solicitors, our experienced lawyers will work with you to appoint suitable and trustworthy family members and close friends as your Attorneys and Enduring Guardians. Contact us on (02) 8080 7585 for a free consultation with our experienced Estate Planning lawyers.

We also provide in-house advice to companies on a range of matters, including:

• employment-law issues (i.e. enforcing or dispute a restraint of trade clause for previous or new employees);
• compliance and regulatory issues (i.e. licencing and underquoting breaches)
• criminal matters;
• property matters;
• defamation proceedings; and
• all types of commercial matters (i.e. drafting shareholder agreements).