DATE: 24 June 2008DISTRIBUTION: SOLICITORS/BANKSSUBJECT: Powers of Attorney Amendment Act 2008
The Powers of Attorney Amendment Act 2008
(the Amendment Act) commenced on the 13 June 2008 when it received Royal Assent.
There is no doubt that there are powers of attorney or other instruments that have been made under the Powers of Attorney Act 2000
prior to this circular but not yet lodged with the Land Titles Office. I intend to apply my discretion under section 11(5A) and accept for lodgment powers of attorney or other instruments that were made prior to and on 24 June 2008 that do not comply with the amended requirements which are lodged before 7 July 2008.
Any power of attorney or other instrument made after 24 June 2008 and lodged under the Powers of Attorney Act 2000
must comply with the amended formal requirements, amended witnessing provisions and any other relevant amendments introduced by the Amendment Act.Following is a description of the Amendment Act.
The Amendment Act amends particular provisions of the Powers of Attorney Act 2000
(the Act) that relate to the formal requirements of a power of attorney, provides for the completion of a registration application form when any power of attorney or other instrument is lodged, clarifies the witness provisions, and improves the practical implementation of the Act.
Amendments to the formal requirements for a power of attorney include the reintroduction of a registration application form that must accompany any power of attorney or other instrument lodged under the Act. The registration application form provides a summary of information required to be entered into the Powers of Attorney Register such as the name of the donor, the name(s) of the attorney(s), and a description of the type of power of attorney.
The changes to the formal requirements include amending the Act to:
- provide that a power of attorney may only have one donor; and
- provide that the donor must actually sign the power of attorney for the power to be effective; and
- reflect that the Power of Attorney Register consists of copies of a power of attorney and that the original is always returned to the lodging party; and
- require that documents must be pinned or stapled in the top left hand corner, that each page of the document must have a correct page number and that the document must be submitted on A4 size paper; and
- provide that alterations to a power of attorney, other instruments or annexures must be initialled.
There are in existence over ten thousand "dormant powers of attorney", powers of attorney that have been executed in accordance with the current Act but not yet registered. A large number of these "dormant powers of attorney" would not comply with the amended formal requirements, for example if they are more than one page the pages may not be numbered nor stapled or pinned in the top left hand corner.
Section 15 has been substituted with a new section which extends the saving of 'powers of attorney' and other documents relating to powers of attorney that were capable of being registered to those made after the commencement of the 2000 Act but before the commencement of this Amendment Act, that is "dormant powers of attorney".
The second main area covered by the Bill relates to witness provisions. The Amendment Act removes differences between the witness provisions in the forms in Schedule 1 and in sections of the Act.
Forms 3 and 4 have been amended to provide that the witnesses certify only that the donor signed the enduring power of attorney in the presence of the witnesses. This removes the requirement for the witnesses, the attorney and the donor being present when the enduring power of attorney is signed. Further the acceptance of the attorney does not have to be witnessed with the signature of the attorney being sufficient evidence of acceptance. Finally, the witnesses are not required to certify that the donor signed the enduring power of attorney freely and voluntarily.
The Amendment Act introduces consistent witnessing requirements for initialling of alterations, or witnessing corrections made in accordance with a request by the Recorder of Titles. Two witnesses are required for initialling of alterations or witnessing corrections for an enduring power of attorney and one for any other power of attorney. The witnesses need not be the same as those that witnessed the enduring power of attorney, other power of attorney or other instrument.
It also validates any power of attorney that may have been witnessed incorrectly under the Act prior to the commencement of the Amendment Act.
In addition to the two main areas described, other amendments relate to improving its practical implementation. These changes include amending the Act to:
- provide that where an attorney(s) under an enduring power of attorney appoint The Public Trustee to act in their stead if they no longer wish to act as attorney(s), they will be required to complete the new Form 6 to appoint The Public Trustee as attorney under an enduring power of attorney. Form 6 contains an Acceptance by the Public Trustee that if signed by The Public Trustee signifies acceptance of the appointment. This is not currently in the Act. Anyone searching the Powers of Attorney Register will be made aware of the change of attorney; and
- provide that a person can rely on an attorney's signature as authorisation to act as a member of a specified class of persons. Section 26 of the Act currently provides that a statement in writing is necessary; and
- provide the Guardianship and Administration Board with the power to suspend the operation of an enduring power of attorney where a hearing, under section 33 of the Powers of Attorney Act 2000, in respect of that enduring power of attorney is adjourned, under section 73A of the Guardianship and Administration Act 1995. During the suspension of the operation of the enduring power of attorney the Guardianship and Administration Board may appoint the Public Trustee as administrator of that estate; and
- provide for the payment of a prescribed fee after the transaction to which it relates rather than at the time of lodgment thus facilitating electronic lodgment and regular bulk lodgments; and
- reflect current practice when a power of attorney or other instrument is lodged which does not comply with the Act and requires correction.
Contact: Principal Examiner, General Law and Powers of Attorney
Recorder of Titles