No Power of Attorney? Here's What Happens Next in NSW

It's one of the most common — and most stressful — situations families find themselves in: a parent has lost capacity, there's no Power of Attorney in place, and suddenly no one has the legal authority to pay a bill, access an account, or sign anything on their behalf. Here's what actually happens next, and why it's so much harder than it needs to be.

No one automatically steps in

This is the part that surprises most families: being a spouse, or an adult child, or even a joint account holder, doesn't automatically give you legal authority to manage someone else's affairs once they've lost capacity. Without a valid enduring Power of Attorney signed while your parent still had capacity, that authority simply doesn't exist — for anyone.

The alternative: applying to NCAT

When there's no Power of Attorney, a family (or any person with a genuine concern for the person's welfare, or NSW Trustee & Guardian itself) can apply to the NSW Civil and Administrative Tribunal (NCAT) for a financial management order — and, separately, a guardianship order if personal or lifestyle decisions also need to be made.

NCAT will consider who is best placed to be appointed, weighing up:

•    Any conflicts of interest the proposed manager or guardian may have

•    Their compatibility with the person and their capability and willingness to act

•    The views of the person themselves, where they can be expressed, and the views of carers

A financial manager appointed through this process can be a family member, or it can be NSW Trustee & Guardian itself — and unlike a Power of Attorney, where your parent chooses exactly who they trust, this decision is made by the tribunal, not the family.

Why this matters more than it sounds

•    It's slower — applications take time to prepare and be heard, time a family often doesn't have if a decision (like paying an aged care deposit) is urgent

•    It's more costly — there are application and ongoing administration costs that a privately arranged Power of Attorney simply doesn't carry

•    The family has less say — the tribunal decides who is appointed; it may not be who your parent would have chosen

•    It can affect a property sale — if the family home needs to be sold to fund aged care, that sale can't proceed until a financial manager is properly appointed and empowered to deal with real estate

NCAT can prioritise genuinely urgent applications, but “urgent” still means weeks, not days — and it's weeks spent in a position no family wants to be in during an already difficult time.

The fix is prevention, not correction

An enduring Power of Attorney, set up while your parent has full capacity, avoids this entire process. It costs a modest amount for a solicitor to prepare properly, takes one appointment, and means your family never has to find out firsthand how NCAT applications work. If you haven't had this conversation with a parent yet, that's the single most useful thing to do before anything else on this list.

A note on legal advice

This is general information, not legal advice — NCAT processes and requirements can change, and every family's circumstances differ. If you're facing this situation now, a solicitor experienced in guardianship and financial management matters can advise on the fastest path forward.

Already in this situation?

If a financial manager has been appointed and a property sale now needs to happen, Scout can help manage that process — including coordinating with the appointed manager or trustee.