ADIS Code - PA
The following information only applies to a power of attorney dated on or after 16.2.2004. The power of attorney must be set out in the form prescribed in Schedule 2 Powers of Attorney Act 2003, or in a similar manner.
See power of attorney dated before 16.2.2004 page.
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. The attorney is prohibited from using the principal's money for gifts, benefits, or reasonable living and medical expenses to or for the attorney or third parties unless specifically authorised in the power of attorney (see Clauses 5, 6 and 7 in Part 2 of the power of attorney form). The attorney may also be subject to other limitations as set out Clause 8 in Part 2 of the power of attorney form.
A power of attorney does not allow the attorney to make decisions on behalf of the principal 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 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.
If attorneys are appointed to act jointly:
- all attorneys must sign documents or act together and
- if one attorney vacates the position (eg the attorney dies or renounces, or the principal revokes the power of attorney as regards less than all of the attorneys), the power of attorney is terminated.
See s46(1) Powers of Attorney Act 2003. A power of attorney cannot appoint attorneys jointly and then add that the surviving attorney shall then act severally on the death of the other attorney, see following.
If attorneys are appointed to act jointly and severally, or severally:
- each attorney may sign documents or act alone and
- if one attorney vacates the position (eg the attorney dies or renounces, or the principal revokes the power of attorney as regards less than all of the attorneys), the power of attorney is not terminated in relation to the other attorneys.
See s46(2) Powers of Attorney Act 2003.
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, see s10 Powers of Attorney Act 2003.
There are two types of power of attorney (determined by the exclusion or inclusion of Clause 2 in Part 1 of the power of attorney form):
- an ordinary or general power of attorney: Clause 2, or wording with a similar effect, is not included. The power ceases when and if the principal loses his or her mental capacities or
- an enduring power of attorney: Clause 2, or wording with a similar effect, is included. The "Certificate Under s19 Powers of Attorney Act 2003" must be completed and signed by the prescribed witness and the "Acceptance by Attorney" must be signed by the attorney in order for the power of attorney to be enduring. An authority is only given when the Attorney has accepted their appointment by signing. The power continues if the principal loses his or her mental capacities.
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.
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
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
Part 1 General
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 principal is required. Advise the lodging party of any discrepancies in names.
Clause 1 - Name: the full name (initials are acceptable) of the attorney is required. Advise the lodging party of any discrepancies in names. Variations in a name are to be indexed. An address is not essential.
Clause 2 - Enduring power of attorney: must be deleted if an enduring power of attorney is not required. The power of attorney is not enduring if the "Certificate Under s19 Powers of Attorney Act 2003" has not been completed and signed by the prescribed witness and the "Acceptance By Attorney" has not been signed by the attorney.
Clause 3 - Operation: optional. If not completed the power of attorney is assumed to commence immediately.
Clause 4 - 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.
Part 2 Additional powers and restrictions
Clauses 5 and 6: optional.
Clauses 7 and 8: must be completed or deleted.
Execution: by the principal. The attorney does not have to sign.
Attestation: required. Must be witnessed by:
Certificate under s19 Powers of Attorney Act 2003
Note: this certificate is only to be completed where Clause 2 in Part 1 has not been deleted and an enduring power of attorney is required.
The full name of prescribed witness to the execution by the principal is required. The address is not essential.
Alterations or deletions to the content of the certificate are not acceptable and registration cannot be insisted upon.
The certificate must be dated and signed by the prescribed witness. The capacity of the witness must be stated.
Acceptance by attorney
The acceptance must be dated and signed by the attorney where an enduring power of attorney is required. Only an attorney who has accepted his/her appointment by signing is given any authority. Where more than one (1) attorney has been appointed either jointly and severally or severally only, the Enduring Power of Attorney may be accepted for registration when only one (1) of the attorneys appointed has signed.
Where this has occurred, when registering the seal will be accompanied by a notation as follows - "(the total number of) attorney(s) has/have accepted the appointment". This information should form part of the index entry in the notation field in ADIS.
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 ...".
Power of attorney within a memorandum
A power of attorney contained within a registered memorandum must be entered under the Power of Attorney Frame, ie. code "PA". The original document must contain:
- original signatures
- a reference to the registered memorandum; and
- a good quality photocopy of the whole of the memorandum (the part containing the power of attorney on its own is not acceptable).
The registration copy must be of the entire original document.
The "Registered" seal must be affixed where the original signatures occur, not on the photocopy of the memorandum. Enter the following wording near the "Registered" seal and as a Noting: "Power of Attorney contained in Clause/Section ... of registered Memorandum [registered number]".
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 ...".
Where the Enduring Power of Attorney is not signed by all attorneys, the entry should show - "(the total number of) attorney(s) has/have accepted the appointment".
V: the principal, and any variations thereof.
P: nil.