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Power of Attorney Wills

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					FACT SHEET 6, Private Management

POWER OF ATTORNEY, WILLS AND ESTATES


What if there is a power of attorney relating to the person’s affairs?

An “enduring” power of attorney continues in force even if a person loses the
capacity to manage his/her own affairs. However, disputes may occur and it may still
be advisable to have a financial management order made.

When a financial management order is made, any power of attorney made before the
financial management order came into effect or while the order is in effect is
suspended for the duration of the order unless otherwise ordered by the Court or
Guardianship Tribunal. However, there may be some exclusions, i.e., the attorney
may be authorised by the Guardianship Tribunal to continue to manage part of the
estate.

Can the person make a Will?

A financial management order does not of itself prevent a person being able to make
a Will. Whether a person has the capacity to make a Will is a fact that must be
assessed in each individual case. The person’s solicitor or an officer of a private
trustee company will need to be satisfied that the person has sufficient capacity to
understand what they are doing, i.e., has “testamentary capacity” or the capacity to
make a Will.

What happens if the person whose affairs are being managed by me dies?

A financial management order ceases to be in force on the death of the person. The
Manager then must refer the person’s estate to the executor or administrator.
Securities held by NSWTG and any funds invested in the NSWTG “Common Fund”
will be released to the executor or administrator after production of the probate
documents or letters of administration. NSWTG staff will explain what you need to
do to finalise the estate.

When should I consider asking for the Management Order to be reviewed?

You (or any other person with a genuine interest in the affairs of the person with a
disability) can ask for a review of the financial management order if one or more of
the following situations applies -




                                          NSW Trustee and Guardian
                                             160 Marsden Street
                                              Locked Bag 5115
                                           Parramatta NSW 2124

       Phone: (02) 8688 2600   Facsimile: (02) 8688 9788    Toll Free: 1300 360 466   TTY: 1800 882 889
                                          Email: pmsd@opc.nsw.gov.au
NSW Trustee and Guardian

Cont’d from Page 1 – Power of Attorney, Wills and Estates


       There is a possibility that the person can now manage his/her own financial
        affairs.

       It may be in the person’s best interests to resume management of his/her own
        financial affairs if there is no continuing need for formal management.

       You as Manager are having difficulty coping with your role even after receiving
        all possible assistance, and you consider it appropriate for some other person to
        be appointed in your place.

       Your circumstances have changed so that continuing as a Manager is no longer
        feasible and you have decided to resign.

The Equity Division Protective of the Supreme Court or the Guardianship Tribunal will
then consider if -

       Another Manager should be appointed, or,

       Management should pass to the NSW Trustee and Guardian, or,

       The order should be revoked.

        “My brother-in-law was very old and sick when the order was made.
        At that time no-one expected him to survive but he did. I’m 84 and it is really
        hard for me to get around and do it all but at least the hardest part, selling the
        house, is over. Even though it has been hard, I’m glad I could do it for him but I
        don’t think I can carry on much longer. I will probably have to ask for the Office
        of the NSW Trustee and Guardian to take over management soon.” (Manager,
        three years after appointment)




This document has been prepared by the Department of Justice & Attorney General for general information purposes. While every care
has been taken in relation to its accuracy, no warranty is given or implied. Further, recipients should obtain their own independent advice
before making any decisions that rely on this information. 11/09


                                                        NSW Trustee and Guardian
                                                           160 Marsden Street
                                                            Locked Bag 5115
                                                         Parramatta NSW 2124

           Phone: (02) 8688 2600          Facsimile: (02) 8688 9788    Toll Free: 1300 360 466               TTY: 1800 882 889
                                                     Email: pmsd@opc.nsw.gov.au
v.au

				
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