Powers of attorney reform in NSW.

• Jurisdiction: Australia
• Author: Whitehead, Peter
• Date: 01 January 2004

The Powers of Attorney Act 2003 (NSW) commenced on 16 February 2004. The Act provides timely law reform to an important area of elder law.

The proposals for law reform were developed by a NSW Government committee with representatives from Land and Property Information, Attorney General's Department, Guardianship Tribunal, Office of the Protective Commissioner, the then Department of Aging and Disability and the Public Trustee.

A Green Paper was circulated to many community and professional organisations and the proposals met with virtually unanimous support. There was a clear message that reform was required. This was not surprising as our aging population is creating the need for increased supported decision making, in particular in financial management.

The Act is a response by Government to meet this need and provides a solid basis for lawyers, families and professional financial managers to provide better services to those requiring a power of attorney for life management.

A Key Changes

1 Benefits For Attorney

The statutory short form of a power of attorney provides that a donor can authorise benefits to an attorney for:

* reasonable living and medical expenses, and

* all other benefits.

The Act defines this to mean housing, food, education, transportation, medical care and medication. All the circumstances, in particular the donor's financial circumstances and assets, have to be taken into account in arriving at reasonable benefits.

As to the second category, the common law will still apply, requiring 'unambiguous and irresistible' language to define the benefits.

The reform recognises that an attorney can be dependent on the donor and allows them to include a simple statement that provides a minimum, or safety net, for the well being of the attorney. It overcomes the previous uncertainty.

The reform ensures that the donor turns his or her mind to what he or she really wants and gives effect to these intentions.

2 Benefits For Third Parties

The statutory short form of power of attorney also allows the attorney to expressly authorise the use of the donor's funds to benefit third parties for reasonable living and medical expenses. Regard must be had to all the circumstances in particular the donor's financial circumstances and assets.

Like the proposal in relation to attorneys taking benefits, the main advantage of this change is that it removes uncertainty. It also allows the donor to include a simple statement that provides a minimum...