Power of Attorney : An Overview
If you intend being outside Australia as an expatriate for a considerable period of time it is worth considering whether you should execute a power of attorney to someone resident in Australia. A power of attorney is a document given by one person (the principal or donor) to another person (the attorney) that enables the attorney to act on behalf of the principal - an enduring power of attorney is one that continues even after the principal is mentally incapacitated (in the absence of it being revoked by the principal).
The terms of the power of attorney specify exactly how wide the attorney’s powers are; they may be very wide indeed, allowing the attorney to do almost anything in place of the principal, or only allow the attorney to act in very specific circumstances determined by the principal. Additionally, you may name more than one person as your attorney and provide them with joint or several powers to act on your behalf. Powers of attorney can be structured in a very flexible fashion to meet most requirements.
How do you create a power of attorney? A deed of appointment must be signed and witnessed, and if the power is to be used for a real estate transaction it should also be registered at the Land Titles Office. Although there is no legal requirement to do so, it is highly recommended that a solicitor prepares the deed of appointment. This is particularly the case where the power is to be very specific, or limited, and the wording of the deed could be critical.
Some particular characteristics of powers of attorney:
- Revocation: as long as you are mentally capable you may revoke a power of attorney. The revocation does not take effect normally until notice has been provided to the attorney, which should be done in a formal manner, preferably in writing. If a power of attorney was noted at the Land Titles Office a written revocation of the power should also be registered.
- In terms of managing your own affairs, the principal may continue to manage his own affairs in Australia or elsewhere. Granting a power does not preclude you from managing your own affairs but the attorney will still be able to deal with these affairs unless you tell them not to deal with a particular matter.
- Expiration: the power of attorney may come to an end in a number of circumstances. These include a) when the attorney notifies the principal that he or she will no longer act under the power; b) when either the principal or attorney dies or becomes bankrupt; c) unless the power of attorney is an enduring power of attorney, when the principal becomes mentally incapacitated, and d) when the principal, by his or her actions, demonstrates to the attorney that the power is at an end.