A Power of Attorney gives someone significant legal control over your finances while you’re still alive. Most people know they should have one. Far fewer stop to think carefully about who they’re actually appointing, or what happens if that choice turns out to be wrong.
In short: a Power of Attorney hands someone real legal control over your finances — but only an Enduring Power of Attorney keeps working if you lose capacity. Choosing the right person, and knowing how to change your mind later, matters as much as having the document at all.
More Than a Formality
A Power of Attorney made under the Power of Attorney Act 2003 (NSW) authorises someone, your “attorney”, to make financial and legal decisions on your behalf. It’s a separate document from your Will, and it stops operating the moment you die.
Not All Powers of Attorney Are the Same
A general Power of Attorney only operates while you have capacity; it automatically stops the moment you lose capacity, which is exactly when many people assume it would step in. An Enduring Power of Attorney is specifically designed to continue operating if you lose capacity, which is why it’s the version most people actually need for incapacity planning. Before signing anything, it’s worth confirming which type you’re being asked to sign, and why.
What Your Attorney Can Actually Do
Depending on how the document is drafted, an attorney can:
- Operate your bank accounts and pay bills
- Manage investments
- Buy or sell property on your behalf
- Deal with Centrelink or other government agencies
Because these powers can be broad, the law requires an attorney to act honestly, avoid conflicts of interest, keep proper records, and act in your best interests — not their own.
Choosing the Right Person
The instinctive choice is often the eldest child or a spouse, but the better question is who is actually right for the role. Look for someone who is:
- Organised and comfortable handling money matters
- Trustworthy, including under pressure from other family members
- Geographically available when decisions need to be made
- Willing to take on the responsibility, not just willing to be asked
You can appoint more than one attorney, and decide whether they must act jointly or can act separately. For larger or more complex affairs, some people appoint a professional (such as a solicitor or trustee company) alongside, or instead of, a family member.
Safeguards Against Misuse
Because an attorney can operate with real financial control, misuse — while not the norm — is a genuine risk worth planning against. Practical safeguards include:
- Requiring attorneys to act jointly for major decisions
- Asking for regular account reporting to another trusted family member
- Reviewing the appointment periodically rather than treating it as permanent
If misuse is suspected, the NSW Trustee & Guardian and the NSW Civil and Administrative Tribunal (NCAT) both have powers to investigate and intervene.
Changing Your Mind: How to Revoke a Power of Attorney
You can revoke a Power of Attorney at any time while you still have the mental capacity to do so. Revocation should be made formally in writing, and it’s important to notify your attorney and any organisation that has been relying on the document (such as your bank), an unnotified revocation can leave room for confusion about whether the old authority still stands.
This article is general information only and is not legal advice. Laws change, and every situation is different; please seek legal advice specific to your circumstances.
Speak With Our Wills & Estate Planning Team
If you’re putting a Power of Attorney in place, or you’re not sure your current arrangement still makes sense, our Wills & Estate Planning team, including NSW Accredited Specialists Adeline Schiralli and Janette Kveytel, can talk it through with you. Call us on (02) 9523 5535 or get in touch online.
