What is a ‘Lasting Power of Attorney”?

What is a ‘Lasting Power of Attorney”?

In New South Wales people are able to make a Power of Attorney which is a written document giving a person or persons the right to deal with their property as if they were the owner of the property. For example, you may make a power of attorney if you are going overseas and need someone to act as your attorney in the purchase of a property.

The difference between a Power of Attorney and a “Lasting Power of Attorney” is that a Lasting Power of Attorney will continue to be effective even if you suffer a loss of mental capacity after executing the Lasting Power of Attorney.

Usually, a Lasting Power of Attorney will be held by your solicitor to be released when you have suffered a loss of mental capacity and can no longer manage your financial affairs.

How do I make a Lasting Power of Attorney?

To be valid a Lasting Power of Attorney must meet the requirements set out in the New South Wales Powers of Attorney Act. These requirements are:

  • The Lasting Power of Attorney document must state that it is given with the intention that it will continue to be effective even if you suffer a loss of mental capacity after executing the document;
  • The Lasting Power of Attorney document is witnessed by a solicitor who attaches to the document a certificate stating that:

(a)  They explained the effect of the document to you before you signed it;

(b)  That you appeared to understand the effect of the Lasting Power of Attorney;

(c)  That the solicitor is not being appointed as your attorney under the Lasting Power of Attorney; and

(d)  That the solicitor witnessed you signing the Lasting Power of Attorney.

The Certificate is required because a Lasting Power of Attorney is a very serious document as it confers on a person or persons a total right to be able to deal with your property.

When can someone use a Lasting Power of Attorney?

A Lasting Power of Attorney will not operate until the person or persons you have appointed have accepted the appointment by signing the document.

It is also possible to place restrictions on when the Lasting Power of Attorney will be able to be used. The most common restriction being that the Lasting Power of Attorney will not operate until a doctor has provided a letter stating that you have lost mental capacity to manage your own financial affairs.

How do I make a Lasting Power of Attorney?

The best way in which to make a valid Lasting Power of Attorney is to have it drafted and witnessed by an expert Wills and Estates Lawyer. This ensures that the Lasting Power of Attorney will operate in the way that you want it to operate and that it will remain valid in the event that you lose mental capacity.

Graeme Heckenberg is an expert Wills and Estate lawyer. If you are living on the Northern Beaches and surrounding Peninsula and need help and advice on a Lasting Power of Attorney, call Northern Beaches Lawyer today for an appointment close to home on 9221 0341 – City Experience By the Beach.