Power of attorney

Sometimes you need to authorise to 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 there are potential dangers.

Legal Aid WA does not provide assistance to draft a power of attorney.

This information will help you to understand what a power of attorney can be used for and some issues to watch out for. Find out: 

  • 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 was mentally well when they made the power of attorney but now is not well?

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.

There is no register for powers of attorney in Western Australia. You will 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
  • 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.

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

If a power of attorney is lodged at Landgate it should be done 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 when the attorney is 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 so that you understand the risks 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 which may be to your disadvantage. Whether they can do this depends 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.

The legal requirements are different for trustees. Get legal advice.
There are also special requirements for a power of attorney dealing with land.

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.  
 

More information

Landgate for policy and procedure guides for land title registration.

 

 

Reviewed: 25 May 2020

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.