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Power of Attorney
What is a power of attorney?
A power of attorney is a document by which a person (called the principal or donor) appoints another (the attorney or donee) as their representative for certain purposes. A person travelling overseas may, for instance, grant a power of attorney to a relative or friend who can then access the traveller’s bank to pay his or her bills. A power of attorney can also be useful where a person becomes ill or incapacitated and requires a friend or relative to manage his or her financial affairs for the duration of an illness.
A power of attorney can be granted to anyone who has the legal capacity to do whatever needs to be done. For example, if a contract needs to be signed, the donee must be someone over 18 years of age. Matters relating to powers of attorney are regulated by the Powers of Attorney Act.
Registration
Registration of a power of attorney ensures a copy of the document is held in a public place. Any power of attorney may be registered as long as it meets the requirements of the Powers of Attorney Act. Registration is mandatory in some cases including cases where:
- the donee will be signing documents relating to land transactions (Section 8, Powers of Attorney Act);
- an enduring power of attorney (Section 13, Powers of Attorney Act).
To register a Power of Attorney in the Northern Territory, two original documents should be lodged at the Registrar-General’s Office (Land Titles Office) and a fee paid. If lodging an original and a photocopy, the photocopy must be an exact reproduction of the original instrument and contain a certification on each page stating it is a true and complete copy of the original Power of Attorney instrument. Certification can only be undertaken by the donor of the power or by a legal practitioner.
Note: All Registrar-General forms are required to be printed double sided. If a form is printed over two pages or more, a non-standard fee will apply. Please refer to the Land Title Office forms fee schedule.
Types of powers of attorney
Powers can be given under a power of attorney for:
- a very specific purpose, such as allowing a relative, friend, public trustee, accountant or lawyer to take money out of the donor’s account for the purpose of paying a particular bill;
- a class of events, such as allowing a relative, friend, public trustee, accountant or lawyer to withdraw money to pay bills; or
- general purposes, such as allowing a relative, friend, public trustee accountant or lawyer to do anything at all on the donor’s behalf that the donor themselves could lawfully do. This sort of power is called a general power of attorney and should only be given to a very trusted person.
It is also possible to limit a power of attorney by only allowing it to be exercised in certain circumstances such as:
- while the donor is in hospital;
- while the donor is travelling overseas;
- where a second person is required to give consent before the power can be
exercised;
- in a certain place, such as in the Northern Territory;
- before the donor reaches a certain age, for example 21 years; or
- for a limited period, such as six months.
Making a power of attorney
- A power of attorney should clearly show:
- the date the power was given;
- who gave the power (name and address);
- who the power was given to (name and address), and
- what the donee is allowed to do.
In most cases, special words and forms are not needed, although standard forms are available. If the power of attorney is to be registered, the standard form set out in the Powers of Attorney Regulations should be used. The form can be downloaded from this webpage.
Individuals who write their own power of attorney must ensure the power is properly drafted; a small mistake in the document can make it ineffective, so it is recommended that it be checked by a lawyer.
The Public Trustee’s Office can also be contacted for the preparation of powers of attorney where the Public Trustee is the donee (attorney).
Enduring power of attorney
The difference between an enduring power of attorney and an ordinary power of attorney is that an enduring power of attorney does not cease to have effect if the donor becomes incapable of managing his or her own affairs. A power of attorney ceases to be effective upon the death of the donor.
To be valid, an enduring power of attorney must contain words that clearly express that the donor intends the power to continue, even if the donor becomes so mentally or physically incapacitated as to be incapable of managing his or her own affairs.
This document must be registered with an endorsement or annexure to the effect of Schedule 1 of the Powers of Attorney Act. Form 96 has this endorsement on page two.
Who can witness?
All power of attorney forms require to be witnessed by a qualified witness eg. Commissioner of Oaths, Justice of the Peace, Police officer, Solicitor.
It is recommended that the donee place a specimen signature on the document as well, although he or she cannot sign as a witness.
A person who cannot sign a power of attorney due to disability or illiteracy can ask another adult, who cannot also be a witness, to sign on his or her behalf. This is called a power of attorney by direction (Form 98). In such a case, two witnesses, neither of whom can be the donee, are required.
Where to obtain a form
Power of Attorney forms can be obtained from a Land Titles Office or downloaded from this website. Notes on the back of the form can guide you in completing the form. Powers of Attorney forms are usually lodged in duplicate.
How much does it cost?
See the Fees Schedule for the relevant fee regarding:
- lodgement of standard forms;
- lodgement of non-standard forms.
Time limits
An ordinary power of attorney lasts:
- until the donor withdraws or revokes it;
- until it expires, if it is subject to time provisions;
- until the donor becomes incapable of managing their own affairs, such as when they become bankrupt or very ill; or
- until the donor dies.
Withdrawing the power of attorney
An ordinary power of attorney can be revoked by:
- the death of the donor or donee;
- the legal incapacity of the donor or donee;
- the retirement of the donee, where he or she does not wish to exercise the power any more;
- the bankruptcy of the donor or donee;
- the donor revoking the power verbally or in writing; or
- a Supreme Court order.
If the power of attorney is registered, the Registrar-General must be notified should any of the above events occur. A donor who revokes a power must give notice in accordance with the Act (Form 99) and pay the specified registration fee.
Using a power of attorney
A power of attorney is entirely discretionary. It does not compel the donee to act upon it.
A power of attorney can only be used in the manner granted. A donee who steps outside the boundaries of his or her authority may be liable to pay compensation if the donor suffers loss as a consequence.
The powers given under a power of attorney can only be transferred to a third person if the document specifies a power of delegation.
Where a document is signed on the donor’s behalf using a power of attorney, the donee can use his or her own name and signature, but must note he or she is acting as attorney.
A power of attorney can be used overseas when it complies with the host country’s requirements. Information about a country’s requirements can be obtained from that country's Consulate or High Commission or Embassy. In most countries, documents have to be witnessed by a Notary Public and stamped by the Department of Foreign Affairs (for a fee) and the foreign country’s consulate. Notaries Public are listed in the Yellow Pages of the telephone book.
Acknowledgment
Some of this material is based on information from The Law Handbook, second
edition, May 1997 Darwin Community Legal Service, the Northern Territory Legal
Aid Commission
For Further Information email RegistrarGeneral.DOJ@nt.gov.au
