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Your Family Cannot Sign for You: Why an Enduring Power of Attorney Cannot Wait
Crownmark Lawyers | Capacity & Protection
A couple in their sixties own their home together and are part way through refinancing it. One of them has a stroke. The following week the other goes to the bank, expecting to sign for both of them, and is told that they cannot. The loan documents need two signatures, and one of the people who has to sign is no longer able to.
In our experience, most people assume that being married, or being the eldest child, carries some legal authority to step in. For money and property, it does not. That authority has to be given in writing, in advance, by the person themselves, and the document that gives it is an enduring power of attorney. This article sets out what it does in Victoria and New South Wales, what happens without one, and what to decide before you sign.
Being Family Gives You No Authority Over Money or Property
There is no general rule in Australian law that a husband, wife, partner or adult child can act for a person who can no longer act for themselves. Without a document that gives the authority, a family member cannot:
Sell, mortgage or refinance a jointly owned home, because every owner has to sign.
Operate bank accounts held in the other person's sole name, or give instructions about their superannuation or investments.
Sign a contract, a lease or a transfer in that person's name.
Keep a business running where the person is its owner or sole director.
Medical treatment is the one area where the law supplies a default. In Victoria, the Medical Treatment Planning and Decisions Act 2016 sets out an order of people who can decide, starting with anyone you have appointed and moving through a spouse or domestic partner, a primary carer and close family. In New South Wales, the Guardianship Act 1987 does something similar through the “person responsible”. The default may not be the person you would have chosen, and it does not reach your money or where you live.
The Document Has to Be Signed While You Still Have Capacity
An enduring power of attorney can only be made by an adult who has the capacity to make it. In broad terms, that means being able to understand what the document does, retain that information, weigh it and communicate a decision. The people who witness the signature have to certify that the person appeared to understand what they were signing.
The word that matters is “enduring”. A general power of attorney stops working when the person who gave it loses capacity, which is exactly when it is needed. An enduring power continues.
⚠️ This is the point that catches families out. Most people go looking for a power of attorney after a diagnosis, a stroke or an accident, and by then it may be too late to make one. Capacity is assessed decision by decision, so an early diagnosis does not automatically rule a person out. But whoever witnesses the document must be satisfied, and where there is doubt they will usually ask for a medical opinion first. The safest time to sign is while nobody is asking the question.
Without One, a Tribunal Decides Who Manages Your Affairs
If capacity is lost and there is no enduring power of attorney, the usual route is an application to a tribunal. In Victoria, VCAT can appoint an administrator for financial matters and a guardian for personal matters under the Guardianship and Administration Act 2019. In New South Wales, the Guardianship Division of NCAT can make a financial management order and a guardianship order under the Guardianship Act 1987.
Three things follow, and none of them is what most families expect:
The tribunal chooses, not you. It may appoint a family member, but it can also appoint a professional or a public body: State Trustees or another trustee company in Victoria, the NSW Trustee and Guardian in New South Wales. Where relatives disagree about who should act, an independent appointment becomes more likely.
It takes time. An application needs medical evidence and a hearing. Urgent orders are possible, but until an order is made nobody has authority, and the refinance, the sale or the business waits.
The appointment is supervised for as long as it lasts. A Victorian administrator must lodge accounts with VCAT every year and pay an annual fee, and the order is reassessed regularly. In New South Wales, a private financial manager acts under directions issued by the NSW Trustee and Guardian and lodges accounts each year.
The tribunals exist to protect people, and they do. The process is simply slower, more closely supervised and less private than a document you could have signed in an afternoon.
Victoria and New South Wales Use Different Documents
The two states split the same decisions between different documents. That matters if you have moved, own property in both, or are helping a parent interstate.
Victoria | New South Wales | |
Money and property | Enduring power of attorney, Powers of Attorney Act 2014 | Enduring power of attorney, Powers of Attorney Act 2003 |
Where you live and other personal matters | The same enduring power of attorney, if it covers personal matters | Appointment of enduring guardian, Guardianship Act 1987 |
Medical treatment | Appointment of medical treatment decision maker, Medical Treatment Planning and Decisions Act 2016 | The enduring guardian, if given that function |
Who must witness | Two adults, one authorised to witness affidavits or a medical practitioner. Relatives, the attorneys themselves and care workers cannot witness | One prescribed witness, such as a solicitor, who explains the document and certifies that you appeared to understand it |
When it starts | When you choose: immediately, on loss of capacity, or at another time you specify. Each attorney also signs an acceptance | When the document says, and not before the attorney accepts by signing. An enduring guardian acts only once capacity is lost |
Registration | None | Required with NSW Land Registry Services before an attorney deals with land |
Each state generally recognises an enduring power of attorney made in the other, but only to the extent the powers could have been given under its own law. If your life or your assets cross the border, the documents should be prepared with both states in mind.
Choosing an Attorney Is the Decision That Matters Most
Once a full financial power is in effect, your attorney can do almost anything with your money and property that you could do yourself: operate your accounts, sell your home, deal with your investments. Most appointments work well. Where they go wrong, it is usually because the wrong person was chosen, or because nobody else could see what was happening.
The document itself can carry the safeguards:
Appoint more than one attorney, and say whether they must act together or may act separately.
Name an alternative, in case your first choice cannot act when the time comes.
Require reporting. An instruction that your attorney give accounts to a named person each year puts a second set of eyes on the money.
Limit what needs limiting, such as gifts, the sale of the family home, or any transaction that benefits the attorney.
Decide when it starts. A power that starts immediately is easier to use. One that starts on loss of capacity keeps control with you for longer, but your attorney will need to be able to show that the time has come.
In both states an attorney must act in your interests, keep your property separate from their own and keep records.
⚠️ Misuse is treated seriously. VCAT and NCAT can each review how an attorney is acting and remove them, and VCAT can order an attorney to compensate you for loss. In Victoria, dishonestly obtaining or using an enduring power of attorney is a criminal offence punishable by up to five years' imprisonment.
A Will Does Nothing While You Are Alive
People often tell us their affairs are in order because they have a will. A will speaks only from death. It gives nobody any authority while you are alive, however unwell you are, and the executor named in it has no power until then. An enduring power of attorney works the other way: it operates during your life and ends when you die, at which point the will takes over.
The two documents are not alternatives. They cover different periods, and a plan with only one of them has a gap. If your will has not been looked at for some years, our article on wills in Victoria in 2026 explains what may have changed around it.
Five Decisions to Make Before You Sign
The questions worth answering are simple to state:
Who do you trust to manage your money, and who to make personal and medical decisions? They need not be the same person.
Will they act alone, together, or with an alternative behind them?
When should the power start?
What should your attorney not be able to do without someone else knowing?
Does your family know the documents exist, and where the originals are kept?
If you can answer all five, the documents themselves are straightforward. If you cannot, that is the conversation to have now, while the decision is still yours to make.
Crownmark Lawyers prepares enduring powers of attorney, appointments of medical treatment decision makers and enduring guardians, and advises families on guardianship and administration applications in Victoria and New South Wales. Under Crownmark Assured Pricing, the fee is fixed and agreed before the work begins. If you or a parent have been meaning to put these documents in place, we are happy to talk it through.
Harjit Mahindroo
Managing Partner
| CONTACT US
Phone: 1800 884 751
From Overseas: +61 3 8595 4338
Email: info@crownmarklaw.com.au
This article is general information about enduring powers of attorney and related appointments in Victoria and New South Wales and is current as at October 2026. It is not legal advice and does not take account of your particular circumstances. The requirements for making, witnessing and using these documents differ between the two states and should be confirmed for your situation. For advice, please contact us or another qualified practitioner.
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