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31 August 2017
Granting Powers of Attorney is the process by which one person (‘the donor’) donates to another (‘the donee’) the authority to perform lawful acts on his or her behalf, such as entering into contracts or transferring land. Such powers may also be granted by companies to nominated individuals.
Normally, a Power of Attorney instrument ceases to have effect if the donor becomes mentally or physically incapable of managing his or her own affairs. In such cases, an Enduring Power of Attorney instrument will be necessary to ensure that the powers granted survive the donor’s incapacity.
Your circumstances will dictate the manner in which a Power of Attorney instrument is drafted. You may wish for the donee to be able to exercise a wide range of powers as and when required, or you may wish for the donee to perform a very specific task on your behalf. A solicitor will be able to advise you as to the appropriate drafting to suit your situation.
Before accepting Powers of Attorney, make sure you are informed of your responsibilities. For example, a donee must keep full and accurate records of all dealings undertaken and provide them upon request of the donor. Further, the Supreme Court has the capacity to order an audit of these dealings.
You may wish to create an Advanced Personal Plan (which replaced the Enduring Power of Attorney in the Northern Territory) so that the donee will maintain power of attorney after the donor has lost capacity. If you contemplate that the donee of the power will be dealing with land, you must register the instrument with the Registrar-General.
For an instrument to be registered, it must meet various formatting requirements. These formats differ amongst jurisdictions, so if you intend for a Power of Attorney to be operable interstate or overseas, seek advice as to the differing requirements that may affect the instrument’s validity.
Disclaimer: This document provides general information and is not legal advice. While we endeavour to ensure the information is correct at the date of publication, laws frequently change. If anything in this post is relevant to you, please contact us for advice on your specific situation