Power of attorney before 16.2.2004

ADIS Code - PA

The following information only applies to a power of attorney dated before 16.2.2004.

See power of attorney dated on or after 16.2.2004.

A power of attorney is an authority given by the principal (also known as the donor) to an attorney to execute instruments and act for and on behalf of the principal as regards their financial and property matters.

A power of attorney does not allow the attorney to make decisions on behalf of the donor that are of a personal nature, eg affecting the principals lifestyle, place of residence or medical treatment.  These matters may be delegated by appointing an enduring guardian.

The principal, also known as the donor, may be a private individual, a company or any other type of organisation.  More than one principal may give a power of attorney.

The attorney, also known as the donee, may be a private individual, a company or any other type of organisation.  More than one attorney may be appointed by a power of attorney, and the attorneys may be appointed to act jointly or severally.  Jointly, all attorneys must sign documents or act together.  Severally, each attorney may sign documents or act alone.

An attorney for an individual cannot:

  • execute an instrument on behalf of a principal who is acting as a directory/secretary etc of a company.  Only an attorney appointed for the company can execute an instrument on behalf of the company or
  • carry out the duties of trusteeship where the principal is a trustee and the power of attorney is drawn on the prescribed form.

There are two types of power of attorney (determined by the exclusion or inclusion of Clause 3, see below):

  • an ordinary or general power of attorney:  Clause 3, or wording with a similar effect, is not included.  The power ceases when and if the principal loses his or her mental capacities.  The power of attorney must be witnessed in the usual manner; or
  • an enduring power of attorney:  Clause 3, or wording with a similar effect, is included.  The power continues if the principal loses his or her mental capacities.  The power of attorney must be witnessed by a prescribed person, and a certificate by the prescribed person is required.

A power of attorney must be registered for:

  • land transactions, except for a lease with a term less than 3 years including any option of renewal (s163 Conveyancing Act 1919)
  • land transactions involving Torrens Title land, except for a lease with a term less than 3 years including any option of renewal (s36(2) Real Property Act 1900); and
  • share transactions (Australian Stock Exchange practice).

A power of attorney ceases when the principal dies or becomes bankrupt.

A power of attorney made under the legislation of another State or country may be accepted for registration.  An enduring power of attorney made under the legislation of another State or Territory of Australia may be accepted for registration providing it is accompanied by a certificate from a legal practioner from that State or Territory stating:

  • the power of attorney was made in accordance with the formal requirements of the law of that State or Territory and
  • he or she has been admitted, holds a practising certificate and practices in that State or Territory.

A power of attorney written in a foreign language must be accompanied by a translation and be verified by the interpreter.

Power of attorney form

The wording for a power of attorney as formerly set out in the repealed Schedule 7 Conveyancing Act 1919 is as follows:

Power of Attorney

This power of attorney is made on [date] by [name and address of the principal].

  1. I appoint [name and address of the attorney] to be my attorney to exercise, subject to any conditions and limitations specified in Part 2 of this instrument, authority conferred on an attorney by s163B Conveyancing Act 1919, to do on my behalf anything I may lawfully authorise an attorney to do.
  2. (Optional) In the exercise of the authority conferred on my attorney by s163B Conveyancing Act 1919, my attorney is authorised to execute an assurance or other document, or do any other act, whereby a benefit is conferred on my attorney.
  3. (Optional) This general power of attorney is given with the intention that it will continue to be effective notwithstanding that after its execution I suffer loss of capacity through unsoundness of mind".

Lodgment requirements

Stamp duty - Not required.

Registration copy - Required. If unacceptable, Registration insisted upon is prohibited.

Statement of Title Particulars form - Not required.

NOS form - Not required.

Index Particulars form (completion)

(A) Lodging Party - Must be completed.

(B) Instrument - Power of Attorney

(C) Locality - Not required.

Link Conveyance - Not required.

Principal Deed - Not required.

(D) Indexing - The principal.

(E) Certification - Required.

Document requirements 

Date: must be dated with the date of execution. If not dated advise the lodging party. If a date is not furnished, indicate Registration insisted upon and include the reason.

Name: the full names (initials are acceptable) of the donor is required. Advise the lodging party of any discrepancies in names.

Jointly/Severally:  where more than one attorney is appointed the power of attorney must indicate that the attorneys are to act:

  • jointly, ie all attorneys must sign documents or act together or
  • severally, ie each attorney may sign documents or act alone or
  • jointly/severally, ie all attorneys may sign documents and act together or each may sign documents or act alone.
"Clause 3" included

Execution:  by the principal.  The attorney does not have to sign.

Attestation:  required.  Must be witnessed by a person prescribed by Clause 50 Conveyancing (General) Regulation 2003, ie:

  • within Australia:
    • a registrar of a Local Court or
    • a barrister or solicitor of a court of any State or Territory of the Commonwealth.
  • outside Australia:
    • a registrar of a Local Court
    • a barrister or solicitor of a court of any State or Territory of the Commonwealth
    • a legal practitioner duly qualified in that country, instructed and employed independently of any legal practitioner appointed as an attorney under the instrument or
    • an Australian Consular Officer, or a British Consular Officer, exercising consular functions in that country.

Where the appointed attorney is a solicitor, the prescdribed person cannot be another solicitor acting for, employed in the legal practice of, or be a member of a partnership that carries on a legal practice and of which the attorney under the instrument is a member.

Certificate:  required.  The prescribed person witnessing the execution by the principal must state that they explained the effect of the document to the principal before it was executed, see s163F(2) Conveyancing Act 1919 and Clause 50 Conveyancing (General) Regulation 2003

IPF: must be completed.

Staff processing information

Power of attorney including a revocation

A power of attorney containing a revocation of a previous registered power of attorney must be entered under the General Frame, ie code "G", with a Noting: "Power of attorney including revocation of power of attorney Bk ... No. ...".  The Principal Deed must be entered. 

Note: the Power Of Attorney Frame, ie code "PA", does not allow the entry of the Principal Deed details of the revoked power of attorney.  Enter the principal as a Vendors entry.

A power of attorney containing a revocation of a previous unregistered power of attorney must be entered under the General Frame, ie code "G", with a Noting: "Power of attorney including revocation of unregistered power of attorney dated ...".  

Note: the Power Of Attorney Frame, ie code "PA", does not allow the entry of the Principal Deed details of the revoked power of attorney.  Enter the principal as a Vendors entry.

Power of attorney within a document

A power of attorney contained within another document must be entered under the Power Of Attorney Frame, ie code "PA".  The entire document is required, not just the part containing the power of attorney.  The Registration Copy must be of the entire instrument, except for Westpac Marginal Lending Facility documents.  Enter the following wording near the "Registered" seal on both copies and as a Noting: "Power of attorney contained in clause/section ...".

CA Not required

Indexing

Locality: nil.

Link Conveyance: nil.

Principal Deed:  nil.

Date:  the date of the power of attorney where the principal is a company.

Noting:  where the power of attorney is contained within a document, state:

"Power of attorney contained in clause/section ...".

V:  the principal, and any variations thereof.

P:  nil.