Power of attorney

Press, 10 April 1978, Page 12

Power of attorney

There may be occasions when a person leaving for a trip overseas has to decide whether to leave control of his affairs in the hands of some responsible person while he is away. Something may crop up which could be dealt with simply by someone with the authority to act on his behaif; and the method used to achieve this transference of authority is a “power of attorney” which is simply an authority in the form of a deed given by one person (called the donor) to another (called the attorney) to act as his agent.

ft may be used also where a person’s health is deteriorating and his ability to handle his own affairs is diminshng. In most cases a general power can be gven although occasionally it may be necessary to prepare a deed containing special or restricted powers. The power of attorney is signed by the donor and then, after payment of stamp duty, is held by the solicitor or the attorney.

A general power of attorney will enable the attorney to do virtually anything on behalf of the donor, including power to operate on a bank account, invest money, buy and sell

property, borrow money and to act as trustee of the estate of a deceased person.

A power of attorney granted for specified purposes might enable a solicitor to demand and receive money owing to his clients .to give receipts, sue for payment of moneys owing, take security for debts owing or submit any dispute to arbitration.

Before the attorney can deal with land a copy of the power of attorney must be lodged in the Land Transfer Office and a fee paid. There are, in fact, few limits to the powers of an attorney. One limit is that no power of attorney can event grant power to execute a will or codicil.

This means that a person going overseas should execute a will before leaving and not leave the matter open in reliance on a power of attorney. When some documents are signed by an attorney it is necessary to complete a certificate of nonrevocation of the power which is simply a statement that the attorney has not received notice that the power of attorney has been revoked and that he believes the power is still valid.

A power of attorney may be revoked by the donor of the power at any time unless it is given for valuable consideration and is declared to be irrevocable. (This situation is most often encountered in

mortgages and other securities where the lender is appointed the attorney of the borrower and is given power to do things which are necessary to protect the lender’s security. The power cannot be revoked until the loan is repaid).

No set form of revocation is required and all that is necessary is a clear expression by the donor of his intention to revoke the power. Where the donor dies revocation is automatic and the attorney would have no further authority to act. The preparation of a power of attorney is a matter requiring legal advice and, for people travelling overseas in particular, there are many duties which an attorney can undertake which would otherwise go by default until their return. The convenience of having an attorney to carry out urgent w'ork and the consequent ease of mind of travellers on other than short trips away are good reasons for signing a power of attorney before the journey is begun.