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Powers of Attorney Act 2000
Power of Attorney Forms - there are 4 forms contained in Schedule 1 of the Powers of Attorney Act 2000
A power of attorney is a document that appoints a person (called an "attorney"), to act on behalf of another person who grants the power (the "donor") during the donor's lifetime. The purpose of a power of attorney is to provide proof of the attorney's powers. It allows the attorney to sign any document or do any thing which the donor can do legally, subject to any conditions or limitations stated in the document.
A power of attorney enables a donor's affairs to be managed by a person of their choice when they are unable to conduct them personally, such as if they are ill, travelling overseas or become mentally incapacitated.
Powers of attorney may be used for almost any purpose, including authorising the attorney to collect debts, vote at meetings, operate a bank account or to carry out any other function which can be lawfully delegated. An attorney cannot make personal, medical or lifestyle decisions for a donor. A donor may appoint an enduring guardian for this purpose. For further information on enduring guardians, go to the Guardianship and Administration Board website.
To make a valid power of attorney the "donor" must be at least 18 years old and must understand the nature and effect of the document creating the power.
If a person is unable to manage their own legal and financial affairs due to mental incapacity and does not have a valid power of attorney, it may be necessary for the Guardianship and Administration Board to appoint an administrator to make those decisions for the donor.
Powers of attorney may be general or specific. The authority conferred by the power of attorney may be unlimited or limited to specific acts, which may relate to the manner in which, or the time and place at which the authority may be exercised. For example, if a donor is going overseas for 12 months, they may wish to make a power of attorney so someone can look after their finances during that period.
An enduring power of attorney authorises an attorney to make property and financial decisions for the donor, which continues to have effect even if the donor becomes mentally incapacitated at a later date. There are special rules concerning enduring powers of attorney, both as to their creation and the responsibilities of the attorney. For further information on enduring powers of attorney see the Public Trustee website.
To make a power of attorney you can either engage a solicitor or use a trustee company to draw up the document. Trustee companies will require you to nominate the company as the attorney.
A Power of Attorney must be registered before it becomes effective. The document must be lodged with the Recorder of Titles and a fee of $130.32 must be paid.
A power of attorney remains in force until:
An attorney must not exceed the authority given under the power of attorney. If the attorney does exceed their authority, he or she may be liable for any damages suffered by the donor or others. The attorney may, however, do all those acts which are authorised, but only by a particular method, if the power of attorney so indicates.
Where the attorney acts on a reasonable interpretation of the wording of the power of attorney, the donor is bound by his or her acts and the attorney is protected. If, however, the attorney acts on an unreasonable interpretation, he or she will be liable. If there is some doubt as to the wording of the power of attorney, a solicitor should always be consulted.
The attorney must also act towards the donor with the utmost good faith and tell the donor the nature and extent of any interest which may conflict with his or her duty unless the donor already knows.
An attorney may pass on his or her powers and duties to another person but only if authorised to do so by the power of attorney. Again, where there is doubt, advice from a solicitor should be sought.