Formalities When Setting Up a Power of Attorney

Setting up a power of attorney is critical as this document enables another person to make decisions for an individual. In order to ensure the validity of the document and to ensure that an individual understands the extent of the power being provided certain formalities must be fulfilled.

A Power of Attorney must be registered if your attorney is going to sell, mortgage, lease or otherwise deal with your real estate.

The creation of a power of attorney requires complying with a number of formalities that reflect the serious nature of the appointment. Here at Quinn’s we can help you create a Power of Attorney or an Enduring Power of Attorney and we can provide you with the information you need to make the best possible decision as well as ensuring all the formalities are fulfilled.

Witnessing

An ordinary power of attorney generally only requires a witness but an enduring power of attorney requires a “prescribed witness” to sign a prescribed witness certificate.

An Enduring Power of Attorney can only be witnessed by:

• Solicitor or barrister
• Registrar of a NSW Local Court
• A licensed conveyancer who has completed an approved course under the Powers of Attorney Act, or
• An employee of Public Trustee NSW or a Private Trustee company who has completed an approved course under the Powers of Attorney Act.

Certification

The prescribed witness must also attach to the power of attorney a certificate stating that he or she explained the effect of the enduring power of attorney to you before it was signed, and that they were satisfied that you appeared to understand the effect of the Power of Attorney.

Acceptance By Attorney

If it is an enduring power of attorney then there must be an acceptance by the attorney. By signing this document an attorney accepts his/her appointment.

If you like more information or advice on establishing a Power of Attorney or if you have another Wills & Estate enquiry, please complete and submit the Express Enquiry form on the top right hand side of this page or call us on +61 2 9223 9166 to arrange an appointment.