Managing money and assets
A guardian is not the same as a power of attorney or financial manager. Guardianship is about general health and lifestyle decision making. A financial manager is limited to financial, assets and property decision making.
Power of attorney
A power of attorney is a legal document that appoints one person (the attorney) to act on behalf of you (the principal or donor) in relation to the principal's assets and financial affairs. For example the attorney may be appointed with the authority to buy and sell property, pay bills, collect rents and look after your bank accounts.
You can appoint a friend or relative, or someone impartial like the NSW Trustee and Guardian, or other solicitors or professionals.
A general power of attorney can commence when you decide and for a specific time or purpose such as having a long holiday overseas. It will not have legal authority should you lose capacity to manage your financial affairs.
An enduring power of attorney can also start at the time that it is made. This means that the attorney can act for you if you want them to while you have capacity but the authority continues even if you should lose capacity to make your own financial decisions. This is usually the time when the authority is most needed.
The enduring power of attorney has authority only when the person who is appointed has accepted this role by having the form of appointment signed and witnessed.
The witnesses can only be Australian solicitor or barrister, the registrar of the Local Court NSW, a qualified overseas lawyer, employee of the
NSW Trustee & Guardian, a private trustee company or licensed conveyancer.
A power of attorney can be revoked (cancelled) at any time provided you (the principal or donor) has the capacity to do so. You should revoke the authority in writing and send it to the person (and to
NSW Government Land & Property Information if you have registered your Power of Attorney with them).
Financial management services
Financial management services are provided through the appointment of a financial manager who can make decisions about someone's financial affairs and assets.
Financial management orders
This is a legal decision appointing a person or people to manage the financial affairs of another person who is unable to manage their finances because of a disability. A private financial management order can only be made by the Supreme Court or the NSW Guardianship Tribunal. These orders appoint a suitable person to be the financial manager or the NSW Trustee & Guardian. These orders are made under the
NSW Trustee & Guardian Act 2009 or the
Guardianship Act 1987.
The NSW Trustee and Guardian can also be appointed by the Mental Health Review Tribunal.
Financial trusts
A trust can help look after the financial interests of a person with a disability if their family and friends are no longer able to look after them. A trust is a legal obligation placed on one person, to look after the assets of the trust for the benefit of another person.
Some things to consider in setting up a trust include:
Who will be the trustee?
How can assets be divided fairly between the person with the disability and other family members?
What accommodation and care options need to be provided for?
How much discretion and direction should be given to the trustee?
You should seek appropriate legal and financial advice before setting up a trust. The
NSW Trustee and Guardian can provide further information.