New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 6 (4))
(1) In this Part:
"attorney" , in relation to a power of attorney, means an attorney under the power.
"commencement" , in relation to the Conveyancing (Powers of Attorney) Amendment Act 1983 , means the commencement of section 3 of, and Schedule 1 to, that Act.
"power of attorney" or
"power" includes an authorised substitution, delegation or appointment of sub-attorney.
"principal" , in relation to a power of attorney, means the person giving the power.
(2) In sections 161, 162 and 162A,
"suspended" , in relation to a power of attorney, means:(a) suspended or restricted in operation by reason of unsoundness of mind of the principal occurring after the execution of the instrument creating the power, or(b) suspended by section 110A of the Mental Health Act 1958 .
(3) This Part does not enable an attorney, without express authority, irrevocably to appoint a substitute, delegate or sub-attorney.
(4) This Part extends to powers of attorney authorising, whether expressly or in general terms, the execution of dealings under the Real Property Act 1900 .
(1) An attorney under a power of attorney may, in the exercise of the power:(a) execute any assurance or instrument with his or her own signature and, where sealing is required, with his or her own seal, or(b) do any other thing in his or her own name.
(2) An assurance or instrument executed, or thing done, in accordance with subsection (1) is as effectual as if executed or done by the attorney with the signature and seal or, as the case may be, in the name, of the principal.
(1) Where a power of attorney is, in the instrument creating the power, expressed to be irrevocable and is, or in the instrument creating the power is expressed to be, given for valuable consideration, the power is not, except to the extent (if any) that the instrument otherwise provides, revoked or otherwise terminated by, and remains effective notwithstanding:(a) anything done by the principal without the concurrence of the attorney,(b) bankruptcy of the principal,(c) mental incapacity of the principal,(d) the principal becoming a patient, a protected person or an incapable person within the meaning of the Mental Health Act 1958 , or any other event happening whereby the property or affairs of the principal becomes or become subject to care, management, collection, administration, charge or control under that Act,(e) death of the principal,(f) if the principal is a corporation, dissolution of the corporation.
(2) Where the objects of a power of attorney to which this section applies have been carried out, or have become incapable of being carried out, or a power of attorney to which this section applies is otherwise exhausted, the Court may order that the power of attorney terminate and may order that the instrument creating the power be delivered up for cancellation.
(3) This section does not apply to a power of attorney created by an instrument executed before the commencement of the Conveyancing (Powers of Attorney) Amendment Act 1983 .
(1) Where:(a) an attorney under a power of attorney does an act within the scope of the power, and(b) at that time the attorney does not have notice that the power has terminated or has been suspended,the attorney shall be entitled to rely on the power, as against the principal and any other person, notwithstanding any termination or suspension of the power before the time of the act, in the same manner and to the same extent as if the power had not terminated, or had not been suspended, before the time of the act.
(2) This section applies only to an act done by an attorney after the commencement of the Conveyancing (Powers of Attorney) Amendment Act 1983 .
(1) Where:(a) an attorney under a power of attorney does an act within the scope of the power, professing to act on behalf of another,(b) at the time of the act of the attorney or afterwards, a third person:(i) acts as a purchaser or incurs an obligation or otherwise acts to his or her detriment in a transaction (with the attorney or with any other person) which depends for its validity or effect on the power not having terminated, and not being suspended, at the time of the act of the attorney, or(ii) acts in reliance on a right, title or interest which so depends, and(c) at the time of the act of the third person he or she does not have notice that, at the time of the act of the attorney, the power had terminated, or was suspended so far as concerns the authority of the attorney to do that act,the third person and any person claiming under him or her shall be entitled, as against the principal and the attorney and any other person, to rely on the power notwithstanding any termination of the power before the time of the act of the attorney, and notwithstanding any suspension of the power at that time so far as concerns authority to do that act, in the same manner and to the same extent as if the power had not terminated before the time of the act of the attorney or, as the case may be, were not under suspension at that time.
(2) Subsection (1) does not entitle an attorney to rely on a power in support of an act within the scope of the power done by him or her with notice of termination of the power or notice of suspension of the power so far as concerns authority to do that act.
(3) This section applies only to an act done by an attorney after the commencement of the Conveyancing (Powers of Attorney) Amendment Act 1983 .
(1) Where a power of attorney has terminated and an attorney under the power, knowing of the termination, does any act or thing under or in pursuance of the power, that attorney under the power is guilty of an indictable offence and liable to imprisonment for 5 years.
(2) Where a power of attorney is suspended so far as concerns authority to an attorney to do an act or thing of any nature and an attorney under the power, knowing of the suspension, does an act or thing of that nature under or in pursuance of the power, that attorney under the power is guilty of an indictable offence and liable to imprisonment for 5 years.
(3) This section applies only to acts or things done after the commencement of the Conveyancing (Powers of Attorney) Amendment Act 1983 .
Sections 161, 162 and 162A, as enacted immediately before the commencement of the Conveyancing (Powers of Attorney) Amendment Act 1983 , continue to apply to and in respect of a power of attorney executed before that commencement as if they had not been repealed.
(1) Any instrument (whether executed before or after the commencement of this Act) creating a power of attorney for any purpose whatever may be registered.
(2) Where such instrument is executed after the commencement of this Act no conveyance or other deed not being a lease or agreement for a lease for a term not exceeding three years, and no memorandum by this Act operating as a deed executed by the attorney under the power in pursuance of the power shall be of any force or validity whatsoever unless the instrument creating the power has been registered:
Provided that on registration of the instrument creating the power every such conveyance deed or memorandum executed by the attorney under the power shall take effect as if the instrument creating the power had been registered before the execution of the conveyance deed or memorandum.
(3) Any instrument revoking any such power may also be registered.
(4) Every such conveyance and other deed and memorandum as is mentioned in subsection (2) executed by the attorney under a power of attorney before the commencement of the Conveyancing (Amendment) Act 1930 , shall have the same effect as if that Act had been in operation at the time of the execution.
(5) Nothing in the last preceding subsection shall affect the rights of any party to any proceeding at law or in equity concluded before or pending at the commencement of the Conveyancing (Amendment) Act 1930 .
(1) Where, in the manner provided by subsection (2), a document (being a legible document) is certified to be a true and complete copy of the contents of an instrument creating a power of attorney, the document is evidence:(a) as against the principal under the power of attorney--of the execution and contents of the instrument, and(b) as against any other person--of the contents of the instrument.
(2) A document is certified in the manner provided by this subsection:(a) if there is endorsed on the document a written certificate, to the effect that the document is a true and complete copy of the contents of the instrument of which it purports to be a copy, by:(i) the principal under the power of attorney created by the instrument, or(ii) a person of a prescribed class, and(b) if each page of the document bears the signature of the person who gives the certificate referred to in paragraph (a).
(3) Subsection (1) does not make a document better evidence than is the instrument of the contents of which it purports to be a copy.
(4) This section does not affect any other method of proving the execution or contents of an instrument creating a power of attorney.
(5) A person who gives a certificate for the purposes of this section knowing the certificate to be false is guilty of an indictable offence and liable to imprisonment for 5 years.
(6) This section applies only to a document certified for the purposes of this section after the commencement of the Conveyancing (Powers of Attorney) Amendment Act 1983 .
(1) Subject to this section, an instrument (whether or not under seal) in or to the effect of the form in Schedule 7 confers on the attorney thereby appointed authority to do on behalf of the person executing the instrument anything the person executing the instrument may lawfully authorise an attorney to do.
(2) The authority conferred by an instrument referred to in subsection (1) does not include:(a) authority to exercise or perform any power, authority, duty or function as a trustee conferred or imposed on the person executing the instrument, or(b) unless it is expressly conferred by the instrument--authority to execute an assurance or other document, or do any other act, as a result of which a benefit would be conferred on the attorney appointed by the instrument.
(3) Where an instrument referred to in subsection (1) specifies any conditions or limitations to which the authority conferred by the instrument is to be subject, the authority is so conferred subject to compliance with those conditions or limitations.
This Division applies only to a power of attorney given after the commencement of the Conveyancing (Powers of Attorney) Amendment Act 1983 .
In this Division:
"incommunicate" , in relation to a person, means under such a handicap of body
or mind, by way of coma or paralysis or otherwise, whether or not induced by
any drug or by medical or other treatment, that the person is unable to
receive communications respecting the person's property or affairs, or to
express the person's will respecting the person's property or affairs.
"protected power of attorney" means a power of attorney referred to in section
163F (2).
(1) Subject to this section, a power of attorney is not ineffective by reason that any act within the scope of the power is of a nature which is, at the time when the power is given, beyond the understanding of the principal through unsoundness of mind.
(2) Subject to subsections (3) to (6), a power of attorney does not authorise an attorney under the power to do an act of a nature which is, at the time when the power is given, beyond the understanding of the principal through unsoundness of mind.
(3) Where, on application by the principal under a power of attorney, it appears to the Court that the nature of the acts, or some one or more of the acts, within the scope of the power was not, at the time when the power was given, beyond the understanding of the principal through unsoundness of mind, the Court may by order confirm the power wholly or in part as the case requires.
(4) Where, on application by the principal under a power of attorney, it appears to the Court that the principal has, before or during the proceedings on the application, affirmed the power wholly or in part, the Court may by order confirm the power wholly or in part as the case requires, but only to the extent to which it appears to the Court that the principal was, at the time of the affirmation, sufficiently of sound mind so to affirm.
(5) Where, on application by the principal under a power of attorney (whether or not a protected power of attorney) it appears to the Court:(a) that the principal is incapable of affirming the power because:(i) the principal lacks capacity by reason of the continuation of unsoundness of mind that affected the principal when the principal gave the power, or(ii) the principal is incommunicate, and(b) that it is for the benefit of the principal that the power be confirmed wholly or in part,the Court may by order confirm the power wholly or in part as the case requires.
(6) Where the Court makes an order under this section confirming a power of attorney wholly or in part, an act within the scope of the power to the extent so confirmed, done after the order takes effect by an attorney under the power, shall be as good for all purposes and between all persons as if at the time when the order takes effect the principal were of full capacity and in due form confirmed the power of attorney to the extent of the order of confirmation.
(7) Subsection (5) applies only if and so far as a contrary intention is not expressed in the instrument creating the power, and shall have effect subject to the terms of the instrument creating the power.
(1) A power of attorney is effective so far as concerns any act within its scope, being an act of a nature which is not, at the time of the act, beyond the understanding of the principal through unsoundness of mind.
(2) Where:(a) a power of attorney is, in the instrument creating the power, expressed to be given with the intention that it will continue to be effective notwithstanding that, after the execution of the instrument, the principal suffers loss of capacity through unsoundness of mind,(b) the execution of the instrument is attested by a prescribed person (not being an attorney under the power), and(c) there is endorsed on, or annexed to, the instrument a certificate by that prescribed person stating that the prescribed person explained the effect of the instrument to the principal before it was executed,the power of attorney is effective so far as concerns any act within its scope, notwithstanding that the act is of a nature which is, at the time of the act, beyond the understanding of the principal through unsoundness of mind.
(3) This section does not save a power of attorney from being or becoming ineffective by reason of any matter other than an unsoundness of mind of the principal arising after the execution of the instrument creating the power.
(4) This section applies only if and so far as a contrary intention is not expressed in the instrument creating the power, and shall have effect subject to the terms of the instrument creating the power.
(1) This section applies to:(a) a protected power of attorney, and(b) a power of attorney the principal under which is for the time being incommunicate.
(2) Where, on application by the principal under a power of attorney, it appears to the Court to be for the principal's benefit, the Court may, on the principal's behalf, by order:(a) remove a person from office as attorney,(b) appoint a person to fill a vacancy in the office of attorney,(c) with the consent of the attorney and of any other interested person:(i) alter the scope of the power,(ii) otherwise alter the instrument creating the power, or(iii) alter the rights and duties of the principal and the attorney between themselves,(d) direct an attorney to furnish accounts and other information to the Court or to a person approved by the Court, or(e) revoke the power.
(3) For the purposes of subsection (2) (b), a vacancy in the office of attorney occurs in any of the following events:(a) renunciation of the power by an attorney,(b) removal of an attorney by the principal or with the principal's authority, or by the Court under subsection (2),(c) disability of an attorney,(d) death of an attorney,(e) where an attorney is a corporation, liquidation or dissolution of the corporation,(f) other event personal to an attorney whereby the attorney's authority is terminated.
(4) Where the Court makes an order directing an attorney to furnish accounts or other information under subsection (2) (d), the Court may make further orders for:(a) preventing unnecessary disclosure of the attorney, and(b) inquiry and report on the conduct of the attorney.
(5) The Court may revoke a power of attorney under subsection (2) (e) notwithstanding anything in the instrument creating the power, but otherwise subsections (2), (3) and (4) apply only if and so far as a contrary intention is not expressed in the instrument creating the power, and shall have effect subject to the terms of the instrument creating the power.
(6) A removal, appointment, alteration or revocation under subsection (2) (a), (b), (c) and (e) shall have effect as if done in due form by the principal, and as if the principal were of full capacity and were, so far as necessary, authorised to do the thing in question by the instrument creating the power.
(7) This section has effect subject to section 160.
(1) Where the principal under a power of attorney is incommunicate:(a) proceedings under this Division by the principal:(i) may be commenced and carried on as prescribed by rules of court, or(ii) subject to rules of court, may be commenced and carried on as if the principal were of unsound mind, and(b) subject to rules of court, all persons shall, in relation to the proceedings, be as nearly as may be in the like position in law as if the principal were of unsound mind.
(2) Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act 1970 .
(Section 163B)
THIS POWER OF ATTORNEY is made on theday of19by AB of
I appoint CD ofto be my attorney to exercise, subject to any conditions and limitations specified in Part 2 of this instrument, the authority conferred on an attorney by section 163B of the Conveyancing Act 1919 , to do on my behalf anything I may lawfully authorise an attorney to do.
In the exercise of the authority conferred on my attorney by section 163B of the 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.
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.
(*Clause 2 or 3, or clauses 2 and 3, may be omitted.)