DATE: 6 September 2024
DISTRIBUTION: GENERAL
SUBJECT: Common Issues with lodgements under the Powers of Attorney Act 2000 ('the PoA')
The purpose of this Circular is to provide clarification on common issues related to the lodgement of powers of attorney and other instruments under the PoA. For the sake of convenience and avoidance of doubt any reference to a power of attorney includes enduring powers of attorney ('PA').
Please also refer to information on our website at Powers of Attorney | Department of Natural Resources and Environment Tasmania (nre.tas.gov.au)-
FORMS
- A completed and signed registration application (Form 5) must be included for every power of attorney or other instrument lodged under the PoA. For example, where a deed includes a revocation and a new power of attorney then a Form 5 and the prescribed fee are required for the revocation and a Form 5, and the prescribed fee are required for the PA.
- Forms in Schedule 1 of the PoA must not be altered. Therefore, a form must either accord with those found in Schedule 1 or be in the form of a deed without reference to a Form in Schedule 1.
GENERAL
- If a PA or other instrument consists of more than one page, each page (including cover pages) must be consecutively numbered (e.g. X of X pages) and be stapled or pinned in the top left hand corner. The number of pages recorded on the Form 5 does not include the Form 5.
- A revocation of a registered PA lodged for registration must include the registered PA number being revoked. For revocations of unregistered PA's see sections 29 and 32AE(6) of the PoA. A Deed of Revocation of Power of Attorney is available on our website.
- Where there are two or more Attorneys the PA must indicate if they are appointed either: jointly; or jointly and severally.
- An alteration or correction to a PA or annexure is to be made by striking through the word or words intended to be altered or corrected so as not to render the original word or words illegible. Liquid paper or white out cannot be used. Sections 9-11 of the PoA cover the requirements where an alteration or correction is required to be made to a PA or other instrument before it is registered. No alterations or corrections can be made to a registered PA or other instrument.
- The Land Titles Regulations 2022 do not apply to PA's or other instruments lodged under the PoA.
- There must be no discrepancy between details on the Form 5 and the PA or other instrument e.g. name spelt differently, type of instrument. Care should be taken to avoid general spelling errors e.g. Jmaes.
- Evidence of death is not required to be annexed to, or provided with, a Declaration of Death.
- If a power of attorney or other instrument is drawn with two names for one person e.g. Mary Margaret Smith (also known as Margaret Mary Smith) then only the first name will be entered in the register. In other words any also known names will be excluded from entry.
REGISTRATION OF FOREIGN POWERS OF ATTORNEY ('FPA') IN TASMANIA – PART 6 OF THE PoA
Even though an instrument creating a power of attorney that is registered in another State or a Territory under a law that corresponds to the PoA is taken to be registered in Tasmania, for the purposes of the PoA, a FPA can still be registered in Tasmania.
To register a FPA in Tasmania that has not been registered in another State or Territory then the following is required:
- The original power of attorney;
- A completed and signed registration application (Form 5) for each power created;
- The prescribed fee Land Titles Office Fees | Department of Natural Resources and Environment Tasmania (nre.tas.gov.au) for each power created; and
- Certificate of Proof of Foreign Execution of Power of Attorney
To register a FPA in Tasmania that has been registered in another State or Territory then the following is required:
- A certified copy of the power of attorney by an authority exercising functions similar to those of the Recorder under the PoA to be a true copy of that power of attorney or other instrument;
- A completed and signed registration application (Form 5) for each power created;
- The prescribed fee Land Titles Office Fees | Department of Natural Resources and Environment Tasmania (nre.tas.gov.au) for each power created; and
- A Certificate of Proof of Foreign Execution of Power of Attorney
MULTIPLE DONORS
Further to Office Circular No. 8/2022 | Department of Natural Resources and Environment Tasmania (nre.tas.gov.au), it is correct that a power of attorney created under either section 18 or 30 of the PoA must not have more than one donor (section 9(1)(a) of the PoA).
It is observed there are instances where one physical document may include more than one person as a donor, but they are not both donors of the same power. For example:
Two (2) individual donors sign the same power of attorney document appointing the same or different attorneys.
In that case, each donor is creating their own power of attorney authorising the same or different person(s) to act. This situation is an example of the creation of 2 separate powers of attorney, albeit within the one document.
Accordingly, a single document with more than one person as a donor each creating their own power can be registered (subject to examination otherwise) and is not contrary to the PoA provided that:
A separate Form 5 and prescribed fee for every power of attorney being created by that single physical power of attorney document is required.
DEALINGS LODGED UNDER THE LAND TITLES ACT 1980 EXECUTED UNDER OR IN PURSUANCE OF A POWER OF ATTORNEY
If a dealing lodged under the Land Titles Act 1980 is executed under or in pursuance of a PA then that PA must be either registered in Tasmania or be one that is taken to be registered in Tasmania i.e. a FPA that is registered in another State or a Territory under a law that corresponds to the PoA.
Where a dealing is executed under or in pursuance of a FPA that is taken to be registered in Tasmania then a Certificate of Proof of Foreign Execution of Power of Attorney and certified copy of the FPA must be included with the lodgement of the dealing.
Where a dealing is executed under a FPA that is registered in Tasmania then a certified copy of the FPA is not required with the lodgement of the dealing.
REFUSE or REQUISITION
A PA or other instrument that does not comply with the PoA and which cannot be made to comply by correcting it must be refused. An example of immediate refusal would be where the dates of signing by the donor and witness(es) are different and therefore cannot be made to comply.
Please note that staff at the Land Titles Office do not pre-check powers of attorney or other instruments before they are lodged.
ROBERT MANNING
Recorder of Titles