We often get asked whether a lawyer needs to be involved in putting in place an Enduring Power of Attorney. The answer to this question is a simple no, you do not need to involve a lawyer – you are quite at liberty to put an Enduring Power of Attorney in place on your own. There are some very useful resources on the web to assist you.
However, in order to be a valid Enduring Power of Attorney in NSW your signing of the document must be witnessed by a ‘prescribed person’, and that person must attest to a number of important things, including that they:
- Explained the effect of the document to you before you sign it; and
- Believe you understand the effect of the document.
Obviously their ability to do this without being involved in the preparation of the document may be limited.
So who is a prescribed person for this purpose? Section 19(2) of the Powers of Attorney Act 2003 (NSW) defines a ‘prescribed person’ as:
- A barrister or solicitor of any State or Territory of the Commonwealth;
- A legal practitioner duly qualified in a country other than Australia;
- A licensed conveyancer under the Conveyancers Licensing Act 2003 (NSW);
- A registrar of the Local Court;
- An employee of the NSW Trustee & Guardian or a trustee company registered under the Trustee Companies Act 1964 who has completed a course of study approved for this purpose; or
- Any other person prescribed by regulation for the purposes of Section 19(2).
At the time of writing this article no other class of persons has been prescribed by regulation for the purposes of Section 19(2).
Sometimes people get confused by the Powers of Attorney Regulation 2016 (NSW) which defines the classes of persons who can endorse a copy of a Power of Attorney under Section 44(1)(a)(ii) of the Powers of Attorney Act 2003 (NSW). This regulation provides a much broader list of people for this purpose, but this list does not apply for the purpose of witnessing the Enduring Power of Attorney itself under Section 19(2).
If you would like to put in place a valid Enduring Power of Attorney, or if you have any doubts as to the validity of your existing Enduring Power of Attorney, please call us on 1300 654 590.
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