General non-enduring power of attorney
A general non-enduring power of attorney is a legal document where someone appoints one or more people to make financial decisions for them. Financial matters include dealing with legal issues that relate to the person’s financial or property affairs.
People make general non-enduring powers of attorney because they are unavailable or want assistance to manage their financial affairs. General non-enduring powers of attorney are often used for a specific purpose and for a fixed period of time. For example, someone needs another person to run their business while they are overseas so they make a power for the period that they are away.
A general non-enduring power of attorney is not for future planning. If the person who made the power at a future point in time does not have decisions making capacity for the relevant financial matters, a general non-enduring power of attorney does not operate. And the attorney cannot make decisions during this time.
The general non-enduring power of attorney appointment form
Two versions of the general non-enduring power of attorney appointment form can be found here (see right menu).
The shorter version of the form is can be used where no alternative attorneys are being appointed. Both versions of the form have space for the appointment of up to two attorneys.
A person who wants to limit or place conditions on how their attorney(s) carries out their responsibilities or wants to make a general non-enduring power of attorney for their particular circumstances should seek legal advice.
A link to the prescribed form under the Powers of Attorney Act 2014 can be found on the Department of Justice & Regulation website.
How to make a general non-enduring power of attorney
- what power to give (financial matters only)
- when the power starts and ends
- who to appoint.
What power to give
The attorney is the person who has been given authority to make decisions about a specified financial matter or a whole range of financial matters for the person who appointed them (known as the ‘principal’). They act as agent and under the direction of the principal.
The principal can limit or place conditions on how they want the attorney to carry out their responsibilities. If no limits are specified the attorney will be able to make any financial decisions, including legal decisions that relate to financial or property matters, on behalf of the person who appointed them until the appointment ends. A person may want to seek legal advice about this.
How an attorney signs documents
An attorney may need to ‘execute an instrument’ (sign a document) for the principal. This must be done in a way that shows that the attorney executes (signs) it as an attorney for the principal.
An example is:
Signed by [insert name of principal] by their attorney, [insert name of attorney], appointed by [insert name of principal] by general non-enduring power of attorney made on [date power made]
When the power starts and ends
The power can start:
- as soon as the form is signed or
- the form can specify a starting date, a circumstance in which the power starts or an occasion on which the power starts.
If there is no starting point specified, the power is exercisable once the general non-enduring power of attorney is made.
A general non-enduring power of attorney ends:
- when the form specifies
- if the person who made the appointment cancels the power (they can also change the power)
- if the principal dies
- if the principal permanently loses decision making capacity.
Who to appoint
The person making the appointment (the ‘principal’) can appoint more than one attorney.
The principal can also appoint an alternative attorney (or alternative attorneys) to act in circumstances that the principal specifies.
If the person making the appointment appoints more than one decision maker they can choose whether the attorneys make decisions:
- jointly, which means the attorneys must all agree to any decisions and every document must be signed by all of them
- jointly and severally, which means that any attorney can make a decision and sign documents together or without the others.
If the principal does not specify how the attorneys are to make decisions, the attorneys make decisions jointly.
If the principal appoints the attorneys jointly and they cannot come to an agreement about what to do then a decision cannot be made. If this happens, the attorneys should try to ask the principal for direction. If it is not possible to contact the principal, they would have to apply to a court to resolve the disagreement. Appointing the attorneys jointly and severally may avoid such problems and delays. Although appointing attorneys jointly means there is a safeguard.
Complete the ‘General non-enduring power of attorney’ form (see right menu for examples). The shorter version of the form provided here is for use where no alternative attorneys are being appointed. Both versions of the form have space for the appointment of up to two attorneys.
A person who wants to limit or place conditions on how their attorney(s) carries out their responsibilities should seek legal advice.
The form does not have to be witnessed unless the principal is unable to sign the form.
In this case, the principal can direct another person to fill in and sign the form for them. The other person must sign on their behalf in front of them and two witnesses, who must also sign the form.
Copies of a general non-enduring power of attorney can be certified by:
- an Australian legal practitioner
- a financial services licensee
- a Justice of the Peace
- a public notary
- any other person authorised by law to administer an oath
See the Department of Justice & Regulation website for a list of people authorised to administer an oath.
At the bottom of each page (except the last page) of the copy the person should certify that:
‘This is a true and complete copy of the corresponding page of the general non-enduring power of attorney made by __ (insert principal’s name ) on ‘ (insert date made).
On the last page of the copy the person should certify that:
‘This is a true and complete copy of the general non-enduring power of attorney made by __ (insert principal’s name ) on ‘ (insert date made).
The principal can revoke their general non-enduring power of attorney at any time, so long as they have decision making capacity to do so.
(Note: If the principal no longer has decision making capacity to revoke the power, the power will be revoked anyway, for the reason that the principal does not have decision making capacity.)
The revocation must be unequivocal. For example, the principal can revoke a general non-enduring power of attorney by telling their attorney(s) that their power is withdrawn and destroying the general non-enduring power of attorney and any copies.
OPA recommends that the principal revokes the power by filling out the ‘Revocation of general non-enduring power of attorney’ form provided here (see right menu.) OPA also recommends the principal signs the form in front of a witness. The principal should give a copy of the revocation form to their attorney(s) and alternative attorney(s), if applicable.
The principal should keep the revocation form for their records and a record of when they gave the revocation form to their attorney(s). Completing the revocation form helps to make sure that the attorney(s) understands that the principal has revoked the power.
The attorney(s) should return the general non-enduring power of attorney document and any copies. It is also necessary for the principal to notify any relevant people or organisations who has a copy or knowledge of the power of attorney, of its revocation.