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The NSW Government recently announced amendments to the Power of Attorney Act, coming into effect from May 2013.


The practical objectives of the amendments to the Power of Attorney Legislation are:


Objective 1

To make specific provision for the appointment of Substitute Attorneys (being persons who may act as Attorney during certain vacancies in the office of a specified attorney). Currently, Alternate Attorneys can act if the Primary Attorney has passed away or is otherwise incapacitated, but the amendments now allow for more specific appointments.

For example, John has appointed his sons Justin and Mark as Attorneys. The amendments now allow for him to specify that should Justin be unable to act, Justin’s daughter Zoe will join Mark as an Attorney. Conversely, if Mark cannot act, Mark’s son Dylan may act alongside Justin.

Objective 2

To allow a person who appoints two or more persons as Joint Attorneys to provide for the continuation of the Power of Attorney where the office of one or more of the Attorneys becomes vacant. Currently, the default position under the Act is that a Power of Attorney is terminated if the office of one or more of the Attorneys becomes vacant. This, however, will not affect people who have recently had a Power of Attorney prepared by Rankin Ellison Lawyers, as we include a clause to specify that the death of one Attorney does not impact on the powers of the other appointed Attorneys.

Objective 3

To give the Guardianship Tribunal the power to determine disputes involving the revocation of a Power of Attorney. The Tribunal will no longer need to refer disputes to the Supreme Court. Determining matters quickly can be particularly important when dealing with elderly people who may be in poor health.

Amendments to the Power of Attorney: Introduction of a new format for the Power of Attorney document .

The amendments will introduce a new format for the Power of Attorney document. In the Government’s Second Reading Speech, it was stated that:

“The new forms contain more information as to what is expected of an Attorney. The forms make it clear that the Attorney is to act in the best interest of the principal and failure to do so may incur civil and criminal penalties. Though a clear majority of Attorneys do act in the best interest of the principal, many lack experience in the role and need some guidance. The information on the form is designed to assist and guide Attorneys in their duties.”

The distinction between an Enduring Power of Attorney and a General Power of Attorney will now be more clearly defined, with each Power of Attorney to be prepared on a different form.

The new Power of Attorney forms are yet to be finalised by the Government. The new formats, however, will not affect the operation or validity of a Power of Attorney you may currently have in place.

For more information on the changes to the Power of Attorney Act or to put a Power of Attorney in place, contact Rankin Ellison Lawyers on 1300 727 813, or email us.

Related articles:
- Is It Time To Update Your Will?
- Having Problems With Your Son-In-Law? Why A Testamentary Trust Could Help

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