One day someone may have to sign for you. This is the document that says who.
A power of attorney lets a person you choose make financial and legal decisions in your name, from a date you set — immediately, or later. Whether it keeps working after you lose capacity depends entirely on which of the two versions you signed.
A power of attorney is a written appointment. It lets the person you name — your attorney — deal with your money, your property and your legal affairs: banking, bills, contracts, and dealings with government agencies. In New South Wales it is made under the Powers of Attorney Act 2003 (NSW).
It does not cover health, medical or lifestyle decisions. An attorney cannot consent to your medical treatment and cannot decide where you live. Those sit under the Guardianship Act 1987 (NSW) and need a separate appointment — see enduring guardianship. The two are commonly made at the same time.
General or enduring — the distinction that matters
Two versions of the same document. The difference matters.
- A general power of attorney operates while you have capacity and ceases to be effective if you lose it. It suits a defined job or period — six months overseas, or a settlement that has to complete while you are unreachable.
- An enduring power of attorney is made so that it continues despite your later loss of capacity. It is the document that keeps working at the point a general power stops.
A general power of attorney ends at the moment most families assume it begins. It is signed in good health, put in a drawer, and produced to a bank years later — by which time it has no effect, and the bank is right to refuse it.
An instrument is not an enduring power merely because you meant it to be. The Act requires it to state that the power is to continue despite loss of capacity, and requires a certificate from a prescribed witness — an Australian legal practitioner among others, never the attorney being appointed — confirming that the witness explained the effect of the document to you before you signed. An enduring power then confers no authority on your attorney until they accept the appointment by signing.
When it starts, and who stays in control
You choose. The instrument can operate immediately, from a stated date, or only once something happens — commonly a registered medical practitioner certifying that you can no longer manage your own affairs. That is the practical answer to a period overseas, an illness, or a diagnosis that makes future capacity uncertain.
Starting it immediately does not hand your life over. You keep making your own decisions for as long as you have capacity, and you can revoke it at any time while you have capacity. You can appoint more than one attorney, and say whether they act together or separately.
What your attorney can and cannot do
An attorney owes you duties — to act in your interests, to keep your money and property separate from their own, and to keep records. The prescribed form gives only limited default authority to make gifts or to confer a benefit on the attorney or anyone else, so if you want the donations you have always made to continue, that has to be authorised in the instrument. An attorney cannot make or change your will, cannot vote for you, and cannot make the decisions an enduring guardianship covers.
Signing, witnessing and registration
You must have capacity when you sign. If your attorney may need to sell, mortgage or otherwise deal with land, the instrument has to be registered with NSW Land Registry Services before the dealing can be registered. Banks and registries generally want the original or a certified copy, so where it is kept matters.
If capacity has already gone
A power of attorney cannot be made by someone who no longer understands what they are signing. Capacity is decision-specific and assessed at the time of signing, so it is a question to have assessed rather than assumed. Where it has genuinely gone, the route is an application to the Guardianship Division of NCAT for a financial management order, or to the Supreme Court — slower, more formal, and the person appointed may not be who the family would have chosen.
What it costs
We quote per matter before work starts. Disbursements — registration fees and searches — are additional, and GST is identified separately from our professional fees. A formal costs disclosure is provided in accordance with the Legal Profession Uniform Law.
The two documents side by side
They are different appointments under different Acts, and one does not cover the other. Most people who make one should make both.
| Enduring power of attorney | Enduring guardianship | |
|---|---|---|
| Governing Act | Powers of Attorney Act 2003 (NSW) | Guardianship Act 1987 (NSW) |
| Decides about | Money, property and legal affairs — banking, paying bills, selling or buying property. | Health, medical treatment, where you live, and the services you receive. |
| Cannot decide | Anything about your health, care or living arrangements. | Anything about your money or property. |
| When it starts | Immediately, or on a stated date or event — your choice when you make it. | Only if and when you lose capacity to make the decision yourself. |
| Do you need both? | Usually yes. Appointing an attorney leaves nobody able to make a medical or care decision; appointing a guardian leaves nobody able to pay for it. | |
We do the three together. A will, an enduring power of attorney and an enduring guardianship appointment can be prepared and signed in one appointment, which is usually how it makes sense to do it — each has its own witnessing requirements, and done separately one of them tends to get left.
Questions people ask before signing one.
What is the difference between a general and an enduring power of attorney?
A general power of attorney operates while you have capacity and ceases to be effective if you lose it. An enduring power is made so that it continues despite that loss. The enduring version carries extra formalities under the Powers of Attorney Act 2003 (NSW) — a statement that the power is to continue, and a certificate from a prescribed witness who explained the effect of the document to you before you signed it.
Can my attorney consent to medical treatment or decide where I live?
No. A power of attorney in New South Wales covers financial and legal decisions only — banking, bills, contracts, property, dealings with government agencies. Health, medical and lifestyle decisions sit under the Guardianship Act 1987 (NSW) and need an enduring guardianship. If you want both areas covered you need both documents, and they are commonly made at the same time.
Does the document have to be registered?
Not in every case. Registration with NSW Land Registry Services is required where your attorney is to deal with land — selling, mortgaging or transferring a property — because the dealing cannot be registered without it. Separately, banks and other institutions will usually want to see the original instrument or a certified copy before they will act on it, so the original needs to be somewhere findable.
Can I cancel a power of attorney once it is signed?
Yes, for as long as you have the capacity to do so. The revocation should be in writing, and notice should reach your attorney and anyone who has been dealing with them on the strength of the document — a bank, an agent, an accountant. If the instrument was registered, the revocation should be registered as well. The appointment also ends on your death, when your executor or administrator takes over.
My mother has already lost capacity. Can she sign one now?
Making a power of attorney requires that the person understands what they are signing at the time they sign it. Capacity is decision-specific, so that is a question to have assessed rather than assumed. Where it has genuinely gone, the route is an application to the Guardianship Division of NCAT for a financial management order, or to the Supreme Court. That process is slower and more formal, and the person appointed may not be who the family would have chosen.
Tell us what's happened.
Tell us what you want covered and who you would want making the decisions, and we will set out which of the two documents is involved, what the signing requires, and what it will cost.
Information on this site is general in nature and is not legal advice, and may have been overtaken by a change in the law. Contacting us does not create a solicitor–client relationship.