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Power of Attorney

Information For Attorney And Donees

Your duties and responsibilities as donee of a power of attorney are important. This information will assist you in understanding those obligations and duties.

What Is A Power Of Attorney?

A power of attorney is a document which enables one person (the donor) to give to another person (you, the donor’s donee and attorney) the right to execute documents or perform some act or acts, for a limited or unlimited period (such as the sale of property, operation of bank accounts and daily financial transactions) on their behalf.
What Can An Attorney Do?

Power of attorney authorises you to perform all lawful acts for which you have been empowered. These acts are only valid to the degree that you act within your authority. Actions in excess of your authority are void. If a valid act cannot be separated from the invalid, then the whole act is rendered invalid. Although an invalid act will not bind the donor, you may be personally liable for such acts where a third party suffers a loss as a result.
What Are Your Obligations As An Attorney?

The relationship is similar to that of principal and agent, only it is closer and more trusting. Not only do your acts bind your donor, but there are a number of duties placed upon you critical to your exercise of power of attorney.

Your duties include:

  • A duty not to exceed the authority or capacity conferred by the power of attorney
  • A duty not to become personally involved in a conflict with your donor’s interest
  • A duty, unless otherwise specifically empowered, not to confer a benefit on yourself, either direct or indirect
  • A duty to at all times maintain separate accounts and records of the donor’s money and your money
  • A duty, unless specifically empowered, not to delegate or substitute any powers
  • A duty to keep your donor’s affairs confidential
  • A duty to act bona fide in your donor’s best interest at all times when dealing with any property in which your donor has an interest.

These duties continue for the duration of the existence of power of attorney.

Registration

Where power of attorney is being used to sign documents that affect NSW real estate, the power of attorney document must be registered at Land & Property Information.

How long will the power of attorney last?
Power of attorney may continue for a specified period or for an extended duration, but it cannot continue indefinitely. Power of attorney ends in any of these circumstances:

  • death of your donor (except in very unusual circumstances)
  • on your death
  • bankruptcy of either you or your donor
  • unsoundness of mind of either you or your donor
  • when the power is frustrated (e.g. if authority was only in relation to a building which was subsequently destroyed, or which was sold)
  • if performance of the power would require you to undertake an unlawful act
  • revocation by your donor or renunciation by you
  • implied rectification by the parties
  • at expiration of time for which it was granted
  • by the happening of an event upon which it was specified by the donor in the power of attorney that it shall come to an end.

Enduring Power Of Attorney

In ordinary circumstances, if your donor suffers from unsoundness of mind, such that they lose their legal capacity, the power of attorney will come to an end at that time.

However, if the power of attorney specifies that it is to survive the donor becoming of unsound mind, then it will not cease in these circumstances. The power is then called an Enduring Power of Attorney.

If, after the donor suffers from unsoundness of mind and you no longer wish to act as their attorney, you should first see the Office of the Protective Commissioner or a solicitor.

How Do I Sign As An Attorney?

In performing your duties as an attorney, you may be required to sign or execute documents on behalf of the donor.

Execution of documents as attorney should be disclosed. This is usually done by signing one of
these formats:

  • “<your donor> by his attorney <your name>”
  • “<your name> as attorney for <your donor>”.

Thereafter, execute the document with your normal signature.