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 clients over 65 and First Nations and CALD clients over 55, but does not provide assistance to draft powers of attorney.
Call our Infoline to find out what help the Elder Rights WA service can give for your situation.
This information will help you to understand what a power of attorney can be used for and some issues to watch out for.
- what a power of attorney is
- when a power of attorney can be used
- what a power of attorney can’t be used for
- the special requirements for dealing with land
- key factors to consider in deciding who to give your power of attorney to
- the main danger in having a power of attorney
- does a power of attorney have to be witnessed?
- what happens if the person had legal capacity when they made the power of attorney but now doesn’t?
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. 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. (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 can’t 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 from being delegated by law.
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. 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 are some of the key factors to consider in deciding who to give your 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 before you decide to give someone power of attorney so that you understand the risks in doing so.
What is the main danger in having a power of attorney?
The main potential danger is that while the donee has power of attorney, another party they deal with may enforce an arrangement to your disadvantage. However, this depends on the facts in your case.
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 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 (for example, because of an illness). Legal capacity means you are able to make reasoned decisions for yourself about personal, financial, and legal matters.
Landgate for policy and procedure guides for land title registration.
Reviewed: 11 October 2022