What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a valuable estate planning tool which allows you to delegate financial and legal decisions if you lose the ability to manage your own affairs, for example, through illness, injury or disability. When making a Power of Attorney, clients often ask if a Power of Attorney needs to be registered.
Does a Power of Attorney Need to Be Registered in NSW?
In New South Wales, a Power of Attorney does not need to be registered unless it is to be used to deal with land (for example, to buy, sell, or mortgage a property). Section 52 of the Powers of Attorney Act 2003 (NSW) has the effect that any dealing with land under a Power of Attorney has no legal effect unless the Power of Attorney is registered. This does not apply to leases for a term of 3 years or less.
In the case of a contract for sale and purchase of land signed pursuant to a Power of Attorney, the Power of Attorney can be registered after the contract is signed but should be registered before settlement.
Voluntary Registration of a Power of Attorney
You may choose to register a Power of Attorney even if you do not plan to use it to deal with land. When a Power of Attorney is registered, it is kept in the General Register of Deeds kept under the Conveyancing Act 1919 (NSW). This means that it becomes a public document accessible by searching the records of NSW Land Registry Services and paying a fee to obtain the document.
How to Register a Power of Attorney in NSW
To register a Power of Attorney, the document must be lodged at NSW Land Registry Services together with the registration fee. While at the time of writing it is still possible to lodge a hard copy for registration, it is also possible to register a Power of Attorney electronically, for example, via PEXA.
Revoking a Registered Power of Attorney
If you revoke a Power of Attorney which has been registered, you should also register the revocation of the Power of Attorney.
What a Power of Attorney Does Not Cover
It is important to note that a Power of Attorney cannot be used to benefit the attorney unless specifically authorised in the document. It only empowers your attorney to make decisions in respect of legal and financial matters, not medical or lifestyle decisions. These require an Appointment of Enduring Guardian.
If you wish for the Power of Attorney to continue to be effective if you lose decision-making capacity, you must ensure that it is an Enduring Power of Attorney.
Get Legal Advice on Powers of Attorney
If you have any questions about making or registering a Power of Attorney or Appointment of Enduring Guardian, contact us to arrange a free initial consultation.
