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Power of attorney

Power of attorney

What is a power of attorney?

A power of attorney is a legal document, which gives, one person (the donee or attorney) the power to act for another (the donor) in some circumstances.

For example, you may wish to sell a property while you are overseas. The donee would be able to act for you as a result of the power of attorney.

It is often used for a specific purpose and a fixed period of time.

When can a power of attorney be used?

A power of attorney may be used for any purpose that can legally be given to someone else. Some situations where a power of attorney can be used are:

  • buying and selling property (if the property is not held on trust for someone else), eg while you are on holidays
  • operating a bank account, eg if you are in hospital
  • voting at meetings.

Some things can't be done for you by someone else through a power of attorney, these include

  • making a will
  • swearing or affirming your affidavit
  • anything prohibited from being delegated by law.

If you are not sure if you can have a power of attorney in your situation get legal advice.

Are there special requirements for dealing with land?

Yes. Where a donee intends to be involved in a transaction about land and it will be recorded at Landgate the power of attorney must be lodged at Landgate.

Landgate requires an original copy so two originals should be signed.

Can it be used for medical decisions?

No. An enduring power of guardianship is needed for medical decisions to be made for someone. For information on enduring power of guardianship see Future medical and health decisions.

Can a power of attorney be limited?

Yes. A power of attorney can be worded to cover a particular purpose, eg sale of a particular piece of land, for a limited time, or to apply only in a particular state or territory.

When you make a power of attorney you need to be clear what, where and when you want it for. You should make sure the wording does not give the donee more power than you intended. Get legal advice if you are not sure what your power of attorney should cover.

What are some of the things I should consider in deciding who I should give my power of attorney to?

Some of the things you should consider are:

  • Do you trust the person?
  • Are they reliable?
  • Do they have the time to do what you may need done?
  • Does the person have the skills and knowledge to do what you want done?
  • Is there any conflict between your interests and theirs?

Be careful who you appoint as there is the potential for the power to be abused. You may want to get legal advice so that you understand the risks you are taking in giving a power of attorney.

What is the main danger in having a power of attorney?

The main potential danger is that while the donee has your power of attorney, another party dealing with the donee may be able to enforce an arrangement against you against your interests depending on the facts.

Does a power of attorney have to be witnessed?

Yes. A power of attorney must be signed before an independent adult witness. The witness verifies that the donor signed the document on the date specified.

If there is a dispute about the legal capacity of the donor or whether they signed it freely, the witness may be called to give evidence.

The legal requirements are different for trustees. This is not covered here. Get legal advice.

Are there special requirements for a power of attorney dealing with land?

Yes. A power of attorney must be signed before an independent adult witness. The witness verifies that the donor signed the document on the date specified.

If three months have passed without lodgement of the power of attorney the registrar will need proof that the power of attorney has not been revoked.

There is a fee for registration of the power of attorney and a fee for removing the registration.

There are different rules for a corporation that are not covered here.

I have been asked to be a witness and I think the person is being pressured into signing the power of attorney. What should I do?

You should not sign as a witness if you think the donor may be being pressured into signing the power of attorney.

I have been asked to be a witness and I think the person doesn't understand what they are signing. What should I do?

You should not sign as a witness if you think the donor does not understand what they are signing or have any concerns about the donor's mental state.

What if the person who wants to make the power of attorney is mentally unwell?

If the donor is mentally unwell the power of attorney may not be valid as they may not understand the meaning of the document. Get legal advice.

What if the person was mentally well when they made the power of attorney but now is not well?

A power of attorney is not valid once the donor loses legal capacity, eg because of an illness. Get legal advice.

Where can I get the form to make a power of attorney?

Most lawyers have a standard form which can be changed to fit a particular situation.

Do I need a lawyer to prepare a power of attorney?

Lawyers usually prepare powers of attorney but this is not a legal requirement. It is important the document is correctly worded and complies with the requirements needed in the state or country it is needed in.

Some of the situations where you should get legal advice include if:

  • you want a better understanding of the risks for you
  • a company is involved
  • the property involved is overseas or interstate
  • the document is to used overseas or interstate
  • the power of attorney is given as security, eg for a debt
  • a trustee is involved.

Can more than one person be given a power of attorney?

Yes. You can give more than one person your power of attorney. You would need to indicate in the power of attorney whether they were to:

  • use the power together
  • exercise the power together and independently.

When does a power of attorney stop operating?

When a power of attorney stops operating can vary.

Some of the situations where a power of attorney may end or lapse are:

  • if it contains a time limit it ends at the end of that time limit
  • if it is for a specific purpose it ends when the purpose is achieved
  • the donee or donor dies
  • the donor or donee loses legal capacity it lapses (eg through mental illness, medical problems etc)
  • the donor revokes it (see heading below How do I revoke a power of attorney?)
  • when the donor is a trustee, when the trustee returns to the state or when they regain the capacity to perform the duties
  • if the donor does something that is inconsistent with having given the donee authority, eg if the donor authorises the donee to do something and then does it themselves
  • in most cases if the donor becomes bankrupt.

Get legal advice if you are not sure if your power of attorney has ended.

If the power of attorney has been given as security as part of a wider arrangement get legal advice as the donor may not be able to revoke it.

How do I revoke a power of attorney?

The requirements for this can vary depending on the situation. Get legal advice if:

  • You are not sure what applies in your situation. 
  • You have entered into a contact with someone for them to be your attorney for a given time or purpose.

In some cases you can say to the donee that the power is at an end. As the donee may deny being told, the presence of a witness may help.

You should give written notice to the donee stating that the power of attorney is revoked or cancelled as soon as possible.

You should keep a copy of this notice. If you send it by registered post you will have proof of postage or you could get a receipt if you hand deliver it. It is a good idea for you to have the power of attorney and any copies returned to you.

You should tell all relevant parties that you have revoked or cancelled the power of attorney, eg Landgate, banks, as soon as possible.

Are there special requirements for revocation of a power of attorney for land transfer ?

Yes. Landgate requires written notice if the power of attorney is terminated.

You could tell the Registrar of Titles by phone and confirm in writing as soon as possible, eg by fax.

I think the person who has the power of attorney is not using it in the best interests of the donor. What can I do?

Let the donor know as soon as possible. Get legal advice urgently.

Is a power of attorney from WA valid interstate or overseas?

A power of attorney made in Western Australia may not be accepted in another state or territory or overseas. You should get legal advice in the state or territory or overseas country you want to use the power of attorney in.

What is an enduring power of attorney?

For information on this go to Enduring power of attorney.

What is an enduring power of guardianship?

For information on this go to Future medical and other health decisions.

Where can I get more information? 

  • Contact the Citizens Advice Bureau on (08) 9221 5711 for help with drafting enduring powers of attorney (a small fee applies) and to access a fact sheet on Enduring Power of Attorney.  
  • Contact Landgate on (08) 9273 7373 for information on fees and procedures to lodge a power of attorney for a land transaction. A sample power of attorney for property transactions can be downloaded from the Landgate website.

Last reviewed: 13/11/2015

Last modified: 13/11/2015 10:03 AM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.