Enduring Power of Attorney NSW: What It Can and Cannot Do
An EPOA lets your attorney manage money, property, and legal matters for you. It continues if you lose decision-making capacity. It does not cover lifestyle or medical decisions, and it ends on death. Those personal decisions sit with an Enduring Guardian, not your attorney.
Key limits:
- Your attorney cannot make or alter your Will.
- Your attorney cannot make health or lifestyle choices for you.
- A general Power of Attorney stops if you lose capacity. An enduring one keeps going until death.
Who Can Be Appointed an Enduring Power of Attorney?
You can appoint one attorney or more than one. You must be an adult who understands the nature and effect of the appointment when you sign.
Choose someone who is:
- trustworthy and organised
- willing and able to keep records
- available to act when needed
- free of conflicts with your interests
You may appoint:
- a spouse or partner
- an adult child or other relative
- a trusted friend
- a professional, such as a solicitor or trustee company
If you appoint more than one attorney, decide how they must act. They can act jointly, or jointly and severally. Joint attorneys must agree on each decision. Joint and several attorneys can act together or alone. State this clearly in the document.
For couples, consider backups. If you appoint your spouse as the first attorney, add a substitute in case your spouse cannot act. Review your choice after major life changes such as separation, death of a loved one, or a move to aged care.
Can Anyone Else Change a Will in NSW?
If a person cannot make a Will because they lack capacity, the Supreme Court may authorise a Will to be made, altered, or revoked for them. This is called a statutory will and it requires a court application with evidence. Your attorney cannot do this by themselves.
The Consequences of Not Having an Enduring Power of Attorney
If you lose capacity and do not have an Enduring Power of Attorney, your finances can stall. Banks and service providers may refuse to take instructions. Bills may go unpaid. Property sales or business decisions may be delayed.
Family members may need to apply to the NSW Civil and Administrative Tribunal for a financial manager to be appointed. This adds cost and time. The person appointed may not be the one you would have chosen. Clear planning with an Enduring Power of Attorney helps avoid these problems and gives your chosen person the legal authority to act for you.
Distinguishing Between Powers of Attorney and Executors
A Power of Attorney works during your lifetime. It lets your attorney make financial and legal decisions for you. It can be general or enduring. An enduring one keeps working if you lose capacity. It ends in death.
An executor’s role begins after death. The executor uses the Will to collect assets, pay debts, and distribute the estate. The executor does not act while you are alive. Your attorney does not act after you die.
Key differences in NSW:
- Timing: attorney acts while you are alive. The executor acts after death.
- Scope: attorney handles money, property, and legal acts. The executor administers the estate under the Will.
- Authority source: attorney’s authority comes from your Power of Attorney document. The executor’s authority comes from your Will and the grant of probate.
Enduring Guardianship vs Enduring Power of Attorney
- Enduring Power of Attorney: financial and legal decisions.
- Enduring Guardian: lifestyle, health, and medical decisions if you lose capacity.
Neither role allows the person to change your Will.
Talk to a Wills and Estates Lawyer in NSW
Make sure your Will and your appointments work together. We can review your Will, prepare an Enduring Power of Attorney and Enduring Guardianship, and advise on capacity and statutory wills. A short consult can prevent disputes and protect your wishes.
Call (02) 9150 6991 or email our Wills and Estates team for a confidential review today.
FAQs: Can an Enduring Power of Attorney Change a Will?
Can my attorney make medical decisions for me under an Enduring Power of Attorney?
No. An Enduring Power of Attorney only covers financial and legal matters. If you want someone to make health or lifestyle decisions for you, you need to appoint an Enduring Guardian.
Can an executor change my Will after I die?
No. An executor’s duty is to carry out the instructions in your Will. They cannot change, revoke, or add anything to it.
What is a statutory will and when is it used?
A statutory will is a Will made or changed by order of the Supreme Court of NSW for a person who lacks capacity. This happens only in rare cases and requires court approval with supporting evidence.
What happens if I lose capacity without an Enduring Power of Attorney?
Your family may need to apply to the NSW Civil and Administrative Tribunal (NCAT) for a financial manager to be appointed. This process takes time, costs money, and the person appointed may not be the one you would have chosen.
Can I appoint more than one Enduring Power of Attorney?
Yes. You can appoint multiple attorneys. They can act jointly (together on every decision) or jointly and severally (either together or separately). It is important to specify this clearly in the document.