Power of attorney

Sometimes you need to authorise someone to make some decisions for you for a specific purpose and a limited time (for example, if you want to sell a property while you are overseas). You need to be careful who you give this power to, as the power could be abused.

Legal Aid WA, through its Elder Rights WA service in the Civil Law Division, can provide information and advice on powers of attorney for those over 65, and First Nations and CALD people over 55, but does not provide assistance to draft powers of attorney.

Call our Infoline or Legal Yarn (for First Nations callers) to find out what help the Elder Rights WA service can give for your situation.

This information will help you to understand when a power of attorney can be used, and some common problems to avoid.

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

There is no register for powers of attorney in Western Australia. You need to make sure that all people who need to know about the power of attorney are given a copy.

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. Situations where a power of attorney can be used include:

Buying and selling property, if the property is not held on trust for someone else. (For example, while you are on holidays.)
Operating a bank account. (For example, if you are in hospital.)
Voting at meetings.

What a power of attorney cannot be used for

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, or
anything prohibited by law from being delegated to another person.

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 first be lodged at Landgate. If a transfer of land is involved under the power of attorney, the Verification of Identity practice requirements must be met.

Landgate requires an original copy of the power of attorney, so two originals should be signed.

A power of attorney must be lodged at Landgate within three months of signing the document. If you do not lodge the power of attorney within three months, the lodgement process becomes more complex and there can be extra delay and expense in dealing with your property.

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

The main danger is that the donee of your power of attorney could enter into transactions or take actions on your behalf that are to your disadvantage. This could be done deliberately, or it could involve them doing something that you would not have done yourself.

What are some of the key factors to consider in deciding who to appoint as attorney?

Be careful who you appoint as attorney, as there is the potential for the power to be abused.

Things you should consider about who to appoint include:

Do you trust the person?
Are they dependable?
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?

You may want to get legal advice before you decide to give someone power of attorney so that you understand the risks in doing so.

Does a power of attorney have to be witnessed?

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

There are different legal requirements for trustees, and special requirements for a power of attorney dealing with land. You must get legal advice in these situations.

What if the person who made the power of attorney has lost legal capacity?

Legal capacity means you are able to make reasoned decisions for yourself about personal, financial, and legal matters. A power of attorney is not valid once the donor loses legal capacity (for example, because of an illness or a brain injury).

If you want the power of attorney to operate when you do not have legal capacity, you need to make an enduring power of attorney.

Get help

Call our Infoline or Legal Yarn (for First Nations callers) to find out what help the Elder Rights WA service can give for your situation.

More information

Landgate for policy and procedure guides for land title registration where there is power of attorney or an enduring power of attorney.

Reviewed: 7 December 2024