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GJA Law – Trusted Legal Guidance for Powers of Attorney in Sydney

Power of Attorney in Sydney

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Power of Attorney is a significant legal matter that affects many individuals and families in Sydney. At GJA Law, we provide clear, practical advice and tailored services designed to protect your interests. Our approach combines local expertise, transparency in fees, and a commitment to simplifying complex legal processes.

What Is Power of Attorney?

A Power of Attorney (POA) is a legal document that allows you (the “Donor”) to appoint someone you trust (the “Attorney” or “Donee”) to make decisions on your behalf regarding your financial, legal, or property matters. It does not cover medical or lifestyle decisions—that requires a separate Appointment of Enduring Guardian, also handled by our team.

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    Crucially, a Power of Attorney involves specific legal rights and responsibilities that can significantly impact your property, family, and estate planning. At GJA Law, we explain the law in plain English and provide practical examples, ensuring you fully understand what is involved. This helps remove uncertainty and allows you to make confident, informed decisions about who acts for you—and when.

    • We used GJA to update our wills , powers of attorney and receive advice on probate matters – they provided us with professional , efficient and friendly service and advice and we would be happy to recommend them to others.

      John


    Read More Testimonials from our Clients!

    Types of Power of Attorney

    Under the Powers of Attorney Act 2003 (NSW)—which applies to all Powers of Attorney executed on or after 16 February 2004—there are two main types:

    1. General Power of Attorney
      • Effective immediately but automatically ends if you lose mental capacity.
      • Ideal for temporary situations, such as travel, illness, or short-term absence.
    2. Enduring Power of Attorney (EPA)
      • Continues to operate even after you lose mental capacity (e.g., due to dementia, stroke, or accident).
      • Essential for long-term planning, especially as we age or face chronic health conditions.

    Any POA created before 16 February 2004 is generally governed by the Conveyancing Act 1900, though EPAs made under the old regime may still be valid if properly executed.

    Who Should Have a Power of Attorney?

    The answer is: anyone over 18 with legal capacity who owns assets or manages financial affairs. You don’t need to be elderly or unwell to benefit. Consider a POA if you:

    • Own property or investments in Sydney
    • Are planning extended travel or medical treatment
    • Are approaching retirement or managing age-related risks
    • Have a family history of cognitive decline
    • Want to avoid court-appointed financial managers (via NCAT or Supreme Court)

    Without a valid Power of Attorney, your loved ones may need to apply to the NSW Civil and Administrative Tribunal (NCAT) for a financial management order—a process that is costly, time-consuming, and removes your choice of who acts for you.

    Legal Requirements for a Valid Power of Attorney

    For an Enduring Power of Attorney to be valid under the Powers of Attorney Act 2003, strict formalities must be followed:

    • The Donee must consent by signing the prescribed form.
    • Your (the Donor’s) signature must be witnessed by one of the following qualified individuals:
      • A solicitor or barrister
      • A Registrar of a Local Court
      • A Licensed Conveyancer
      • An employee of the Public Trustee with approved training
    • The witness must also sign a certificate confirming they explained the effect of the POA to you and that you appeared to understand its implications.

    Failure to comply with these steps can render the document invalid, leaving you legally unprotected at the moment you need it most.

    Powers and Responsibilities of an Attorney

    An Attorney has a fiduciary duty—a legal obligation to act honestly, in your best interests, and within the scope of the authority granted. They cannot:

    • Make decisions about your personal or medical care (unless also appointed as guardian)
    • Use your funds for their own benefit—unless explicitly permitted

    The Powers of Attorney Act 2003 clarified that the prescribed EPA form can include specific clauses allowing the Attorney to:

    • Give reasonable gifts to your close friends or relatives (e.g., birthday or Christmas presents)
    • Use your funds for their own reasonable living and medical expenses (if they are also your carer or dependent)
    • Pay for others’ reasonable expenses—such as a spouse or child you support

    These provisions must be clearly stated; otherwise, the Attorney risks breaching their duties.

    When and How a Power of Attorney Can Be Used

    A Power of Attorney can be tailored to your needs:

    • Immediately: Takes effect as soon as signed (common for EPAs).
    • Conditionally: Only activates upon loss of capacity (requires clear wording).
    • Limited in scope: For example, “only to sell my apartment at 45 George Street, Sydney.”
    • Time-bound: “Valid only between 1 June and 30 September 2026.”

    Case Study 1:
    A young woman is travelling overseas and wishes to authorise her partner to sell a property on her behalf while she is away. She can make a Power of Attorney with a limitation that it only applies between specified dates and only for signing documents in relation to the sale of that property.

    Case Study 2:
    A retired man authorises his son to deal with his financial affairs permanently by making an Enduring Power of Attorney. After being diagnosed with a debilitating mental illness, his son is able to continue to make financial decisions on his behalf.

    Common Power of Attorney Mistakes to Avoid

    Even well-intentioned arrangements can fail due to simple errors:

    • Using outdated or incorrect forms that don’t comply with the 2003 Act
    • Failing to specify limits or conditions, giving the Attorney too much (or too little) power
    • Not updating the POA after major life changes (divorce, death of Attorney, relocation)
    • Assuming a POA covers medical decisions (it doesn’t—separate guardianship is needed)
    • Appointing multiple Attorneys without clear instructions on whether they must act jointly or can act separately

    One Sydney client discovered too late that their DIY POA wasn’t witnessed properly—leaving their spouse unable to access bank accounts during a medical emergency.

    Our Services

    GJA Law’s solicitors assist with Powers of Attorney & Guardianship by:

    • Drafting and checking agreements
    • Providing clear legal advice
    • Assisting in negotiations or disputes
    • Working collaboratively with advisers
    • Overseeing the process with care and accuracy

    • I really appreciated the kind engagement and the sincerity of my experience with Grahame Jackson & Associates. I always felt reassured and safe,·but most importantly I knew I was in capable hands along the various aspects of the process. I was certainly treated as an individual with a unique situation, also with respect and friendly support during this time of need. Many thanks to Grahame and his team.

      Richard

    Why Choose GJA Law?

    • Personalised advice for your circumstances
    • Fixed fees and transparent billing
    • Deep experience across multiple areas of law
    • Technology that helps reduce risk and delay
    • A service ethos built around client confidence

    Learn More About Estate Planing

    Contact Us

    If you are dealing with power of attorney in Sydney, contact GJA Law today. Our experienced lawyers will guide you through the process with confidence and provide the support you need.

    Common Power of Attorney

    What is the key difference between a General and an Enduring Power of Attorney?

    A General Power of Attorney is typically used for a specific, short-term purpose (like managing affairs while you’re overseas) and becomes invalid if you lose mental capacity. An Enduring Power of Attorney (EPA) is designed for long-term planning, as it remains valid even if you lose capacity due to illness or injury. For comprehensive future planning, an EPA is essential.

    Who can I appoint as my Attorney, and what are their responsibilities?

    You should appoint someone you trust implicitly, such as a family member or close friend. An Attorney has a strict fiduciary duty to act in your best interests, manage your finances prudently, keep their money separate from yours, and avoid conflicts of interest. They cannot make health or lifestyle decisions for you unless also appointed as your Enduring Guardian.

    What happens if I need help but don’t have a valid Power of Attorney?

    If you lose capacity without a valid EPA, your family must apply to the NSW Civil and Administrative Tribunal (NCAT) to have a financial manager appointed. This is a public, often lengthy and stressful legal process where you have no say in who is chosen to manage your affairs. A properly prepared EPA prevents this and ensures your chosen person can act immediately.

    What are the strict legal requirements for a valid Enduring Power of Attorney in NSW?

    The document must be the prescribed form under the Powers of Attorney Act 2003. Your signature must be witnessed by an authorised professional (a solicitor, barrister, court registrar, or licensed conveyancer). The witness must also sign a certificate stating they explained the document’s effect to you and that you appeared to understand it. DIY forms often fail these requirements, rendering them useless.

    Can my Attorney access my bank accounts and sell my property?

    Yes, but only if the Power of Attorney document explicitly grants that authority. A standard EPA gives broad powers to manage financial and legal affairs, which includes operating bank accounts and selling assets. However, you can place specific limits or conditions in the document. We ensure the scope of authority is clear and matches your intentions.

    Does a Power of Attorney allow someone to make medical decisions for me?

    No. A Power of Attorney covers only financial and legal decisions. To authorise someone to make health and lifestyle choices (e.g., medical treatment, aged care placement), you must complete a separate document called an Appointment of Enduring Guardian. We typically advise clients to prepare both documents for complete coverage.

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