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1️⃣ NSW Power of Attorney (POA) [General Non-Enduring] publicly available for free ➲ download here; and
2️⃣ NSW Power of Attorney (EPOA) [Enduring] is this automated document ➲ scroll up to the top of this page to create instantly online.
The two types of NSW Power of Attorney (POA) are for practical purposes the same, with one crucial difference.
A NSW Power of Attorney (POA) [General Non-Enduring] automatically ceases if you lose your legal mental capacity after its execution unless it is a Power of Attorney (POA) given as security.
If you want the NSW Power of Attorney (POA) to continue to be effective after you lose your legal mental capacity you must use this automated document, the NSW Power of Attorney (EPOA) [Enduring].
POA is an abbreviation used in place of the term "Power of Attorney".
Variations include EPOA for an "Enduring Power of Attorney" and GPOA or POA for a "General [Non-Enduring] Power of Attorney".
An Attorney for the purposes of your Power of Attorney does not need to be your lawyer.
Anyone who will agree to take on the responsibility can be appointed as your NSW Power of Attorney (POA).
You should choose a person whom you can trust and who will manage your finances + legal affairs in a responsible way.
Usually one or more family members or close friends are appointed as your NSW Power of Attorney (POA).
Alternatively you may prefer to appoint a professional such as the NSW Trustee And Guardian, a private trustee company, or your lawyer to act as your NSW Power of Attorney (POA).
If you do decide to appoint a professional as your NSW Power of Attorney (POA) you need to be aware that fees will apply.
For a discussion of how to assess legal mental capacity, please see the NSW Justice Capacity Toolkit.
You need to consider that appointing a NSW Power of Attorney (POA) will grant them power over your financial + legal affairs.
The terms of the NSW Power of Attorney (POA) may limit their power, though in the case of a NSW Power of Attorney EPOA [Enduring] the power granted will need to be extensive in order for your financial + legal affairs to be managed after you lose legal mental capacity.
A legal document creates a NSW Power of Attorney EPOA [Enduring] if:
1️⃣ The instrument is expressed to be given with the intention that it will continue to be effective even if the Principal lacks capacity through the loss of mental capacity after the execution of the instrument;
2️⃣ The execution is witnessed by a Prescribed Person; and
3️⃣ The Prescribed Person signs the Witness Statement.
The prescribed form for the NSW Power of Attorney (EPOA) [Enduring] notes that it cannot be used for health or lifestyle decisions.
For these decisions we recommend you use our NSW Advance Care Directive (Medical) and/or our NSW Enduring Guardianship document.
A: Yes.
A NSW Power of Attorney (POA) [whether Enduring or not] is an important + powerful legal document.
You should always obtain independent legal advice before you sign it.
A: No, a lawyer is not essential.
➲ In order for your NSW Power of Attorney (EPOA) [Enduring] to be valid, you need to use a Prescribed Person as a witness.
➲ Your lawyer is one of many professionals who are permitted to act as your Prescribed Person.
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 (NSW) 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).
Note: At the time of writing this document overview no other class of persons has been prescribed by regulation for the purposes of Section 19(2).
1️⃣ Has explained the effect of the NSW Power of Attorney EPOA [Enduring] to you before you sign it; and
2️⃣ Believes you now understand the effect of the NSW Power of Attorney EPOA [Enduring].
After you have signed a NSW Power of Attorney GPOA [General Non-Enduring] you still continue to have the authority to deal with your own legal + financial affairs as long as you retain legal mental capacity.
It is at the point of time when you lose your legal mental capacity where the crucial difference between the two types of NSW Power of Attorney (POA) becomes apparent.
If you want the NSW Power of Attorney (POA) to continue to be effective after you lose your legal mental capacity you must use this automated document, the NSW Power of Attorney (EPOA) [Enduring].
Important: Once you have lost your legal mental capacity (unless it returns) you have no ability to create another NSW Power of Attorney (POA) or any other legal document.
The question of legal mental capacity is a complex one.
Once legal mental capacity is lost there is still potential it might return, but it is also possible it may not.
We recommended that as part of your Estate Planning process you obtain legal advice and make a fully informed decision whether you want to create a NSW Power of Attorney EPOA [Enduring], a NSW Advance Care Directive (Medical), and a NSW Enduring Guardianship.
Ideally this will all be completed at a time when there is no question regarding your legal mental capacity.
This ensures that in case of something unforeseen happening to you ➲ i.e., a stroke or accident; there will be at least one other person who can quickly + easily look after your money + property.
If not already in place, both a NSW Power of Attorney EPOA [Enduring] + NSW Enduring Guardianship can be appointed as soon as possible after signs/diagnosis of dementia (this is strongly advised).
If you are a member of a Self-Managed Super Fund (SMSF) and proceed to and lose your legal decision making capacity you will encounter expensive and complex legal issues if you don't have an EPOA already in place.
The Superannuation Industry (Supervision) Act 1993 (Cth) (SISA) allows an Enduring Power of Attorney (EPOA) to act on behalf of a member.
If you lose Legal Mental Capacity and you don't have a NSW Power of Attorney (EPOA) [Enduring] then a special application for financial management orders would need to be made to a Court or NSW Civil + Administrative Tribunal [NCAT] to appoint someone as your financial manager.
NCAT may appoint an independent public official called the "Protective Commissioner".
Note: Fees will apply which will be paid on your behalf using your money.
As you would have lost your legal mental capacity you would not be able to do this yourself and would have no control over the process or who is appointed.
If your Attorney does not follow your directions or does not act in your best interest, you should revoke using our NSW Revocation of Enduring Power of Attorney EPOA.
You or someone on your behalf should inform the attorney of the revocation, preferably in writing.
The Attorney must then immediately cease to act as your Attorney.
If anyone else, such as a bank, has been advised about the Power of Attorney (POA), that person or entity should also be informed of the revocation.
Note: Making a new Power of Attorney (POA) does not automatically revoke an earlier Power of Attorney (POA).
Each earlier Power of Attorney (POA) must be specifically revoked.
A: No.
Registration is not essential, unless the proposed actions of the Attorney involve certain types of land +/or share transaction (see our detailed FAQ).
It is highly recommended to register your NSW Power of Attorney EPOA (+/or Revocation) so that it is:
➲ On record as a public document;
➲ Safe from loss or destruction; and
➲ More easily accepted as evidence that your Attorney is allowed (or now revoked) to deal with your legal + financial affairs.
For more information please read our detailed FAQ: How to register my NSW Power of Attorney (POA) +/or Revocation in NSW?
The relevant legislation governing the creation of a NSW Power of Attorney (POA) is:
The Powers of Attorney Act 2003 (NSW); and The Powers of Attorney Regulation 2016 (NSW).
The prescribed form for an NSW Power of Attorney (EPOA) [Enduring] is Form 2 Schedule 2 of the Powers of Attorney Regulation 2016 (NSW).
Note: New temporary regulations permit witnessing via video-conference during the COVID-19 pandemic.
Supporting Resources:
➲ EPOA Risks: Signing away your financial life can be dangerous. Here's how to minimise the risks. Choice Article (last updated 02 March 2017);
➲ NSW Law Society Guidelines for Solicitors preparing an NSW Power of Attorney (Enduring);
➲ Powers of Attorney Act 2003: A Commentary compiled by the Elder Law + Succession Committee (last updated, July 2014).
Social Sharing Image: Courtesy of AbsolutVision on Unsplash
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Ensure you are able to keep your Pet/s with you [as long as possible] by providing specific written directions ahead of time and including financial provision for the support of yourself, your Pet/s long-term care, maintenance, health + pet insurance + potentially your Pet/s carer in your Enduring Power of Attorney [EPOA] / NT Advance Person Plan.
Think of setting up an informal arrangement with the RSPCA as a back-up plan just in case for some reason your friends or family circumstances change and they are no longer in a suitable position to take on the responsibility for long-term care of your Pet/s.
RSPCA Home Ever After / Pet Bequest / Pet Legacy program
For a more detailed discussion please refer to our blog article “Care Planning for your Furry, Fluffy or Fine-Feathered Pets" by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Whether or not you need to formally (in writing) revoke the Power of Attorney will depend upon your individual circumstances, as well as those of your appointed Attorney/s.
If your Attorney does not follow your directions or does not act in your best interest, you should revoke the Power of Attorney.
Note: Making a new Power of Attorney does not automatically revoke earlier Powers of Attorney.
Each earlier Power of Attorney must be specifically revoked.
The most important consideration is whether or not you think you may lose your legal mental capacity in the near future.
If this is the case, it is important you have executed your Will, and appointed Attorneys under Enduring Power of Attorney/s +/or Enduring Guardians + Advance Health Directives you are confident will look after your best interests into the future.
If you have not considered and implemented your estate plan or are not confident you have appointed the right Executor/s, Attorney/s then now is time you need to make any required changes.
In order to revoke an Enduring Power of Attorney, the Principal (you) must still have legal mental capacity.
➲ The Queensland Handbook for Legal Practitioners (i.e., Lawyers) on Capacity; or
➲ The NSW Justice Capacity Toolkit.
Important Note: All of the above applies regardless of whether or not you have concerns.
Legal mental capacity can be lost at anytime due to unforeseen circumstances.
We highly recommend that the above matters be considered as part of a regular review of your estate planning requirements.
If you lose legal mental capacity for any reason, and don't regain it, it will be too late to ensure your intent and instructions are followed.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
A: No.
Registration is not essential, unless the proposed actions of the Attorney involve certain types of land +/or share transaction (see below).
It is highly recommended to register your NSW Power of Attorney so that it is:
➲ On record as a public document;
➲ Safe from loss or destruction; and
➲ More easily accepted as evidence that your Attorney is allowed to deal with your legal + financial affairs.
A: A NSW Power of Attorney (POA) must be registered for:
✅ Land transactions, except for a lease with a term less than 3 years including any option of renewal;
✅ Land transactions involving Torrens Title land, except for a lease with a term less than 3 years including any option of renewal (s36(2) Real Property Act 1900); and
✅ Share transactions (Australian Stock Exchange practice).
To register a NSW Power of Attorney (POA), you must:
1️⃣ Lodge the NSW Power of Attorney (POA) at NSW Land Registry Services, Level 30, 175 Liverpool Street, Sydney 2000; together with a
2️⃣ Completed Deeds Index Particulars Form
An Enduring Power of Attorney (EPOA) made under the legislation of another State or Territory of Australia may be accepted for registration in NSW providing:
It is accompanied by a certificate from a Legal Practitioner (that is, a Lawyer) from that State or Territory stating:
➲ The Enduring Power of Attorney (EPOA) was made in accordance with the formal requirements of the law of that State or Territory; and
➲ The Lawyer has been admitted, holds a practising certificate and practices in that State or Territory.
An Enduring Power of Attorney (EPOA) written in a foreign language must be accompanied by a translation and be verified by the interpreter.
If the Power of Attorney (POA) is registered in NSW, although you are not legally required to do so, in an abundance of caution, we recommend you take the steps summarised below to register the revocation.
If you wish to register your revocation in NSW, you must:
1️⃣ Lodge the revocation at NSW Land Registry Services, Level 30, 175 Liverpool Street, Sydney 2000; together with a
2️⃣ Completed Deeds Index Particulars Form.
Registration of a Power of Attorney [after 16.2.2004]
Revocation of a Power of Attorney
(A) Lodging Party - Must be completed.
(B) Instrument - Power of Attorney / Power of Attorney - Revocation of
(C) Locality - Not required.
Link Conveyance - Not required.
Principal Deed - The affected Power of Attorney if registered.
(D) Indexing - The Principal.
(E) Certification - Required.
Registrar-General Guidelines for a Deeds Index Particulars Form
...
(2) Where a plan referred to in subsection (3), or a dealing, caveat or priority notice, presented for lodgment purports to have been executed under a power of attorney, the Registrar-General may refuse--
(a) to accept it for lodgment, or
(b) to make any recording or entry in the Register or take any other action in respect of it,
unless the power of attorney has been registered as provided for by the Powers of Attorney Act 2003.
51 Powers of attorney may be registered (cf 1919 No 6, s 163 (1) and (3))
(1) Any instrument executed before or after the commencement of this Act that creates a power of attorney may be registered by the Registrar-General in the General Register of Deeds kept under the Conveyancing Act 1919.
(2) An instrument revoking a registered power of attorney may also be registered by the Registrar-General in that Register.
52 Powers of attorney to be registered for dealings affecting land (cf 1919 No 6, s 163 (2) and (4))
(1) A conveyance or other deed affecting land executed on or after 1 July 1920 under a power of attorney has no effect unless the instrument creating the power has been registered.
Note : 1 July 1920 is the day on which the Conveyancing Act 1919 commenced.
(2) If the instrument is registered after the time when the conveyance or other deed was executed, the conveyance or other deed has effect as if the instrument had been registered before that time.
(3) In this section,"deed" includes any memorandum, dealing or other instrument affecting land that is deemed by an Act to have effect as a deed.
(4) This section does not apply to a lease for a term of 3 years or less.
Credits:
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
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