Western Australian Current Acts Western Australian Current Acts (1) A trustee who for
the time being is out of the State or is about to depart therefrom, or is a
member of Her Majesty’s forces, or who is, or may be about to become, by
reason of physical infirmity, temporarily incapable of performing all his
duties as a trustee may, subject to the provisions of this section, but
notwithstanding any rule of law or equity to the contrary, by power of
attorney executed as a deed, delegate to any person the execution or exercise
during his absence from the State or during his incapacity, as the case may
be, of all or any trusts, powers, authorities, and discretions vested in him
as such trustee, whether alone or jointly with any other person or persons;
but a person being the only other co-trustee and not being a trustee
corporation shall not be appointed to be an attorney under this subsection.
(2) Notwithstanding
the power to delegate conferred by subsection (1), a trustee may not so
delegate unless his co-trustees or co-trustee (if any) and such other person
as is empowered by the instrument (if any) creating the trust to appoint
trustees, consent by the same or other deed to the delegation.
(3) Where any
delegation has under this section been duly made to and accepted by any person
and is for the time being in operation, that person has, within the scope of
the delegation, the same trusts, powers, authorities, discretions,
liabilities, and responsibilities (except the power of delegation conferred by
this section) as he would have if he were then the trustee.
(4) In any proceedings
brought by any person beneficially interested under the trust against the
donor of a power of attorney given under this section, in respect of any act
or default of the donee of the power, it is a defence for the donor to prove
that the donee was appointed by him in good faith and without negligence.
(5) All jurisdictions
and powers of any Court apply to the donee of a power of attorney given under
this section in the same manner, so far as respects the execution of the trust
or the administration of the estate to which the power of attorney relates, as
if the donee were acting in relation to the trust or estate in the same
capacity as the donor of the power.
(6) A power of
attorney given under this section does not come into operation unless and
until the donor is out of the State or is incapable of performing all his
duties as a trustee, and is revoked by his return or by his recovery of that
capacity, as the case may be.
(7) In favour of any
person dealing with the donee of a power of attorney given under this section,
any act done or instrument executed by the donee is, notwithstanding that the
power has never come into operation or has been revoked, whether by the act of
the donor of the power or by operation of law, as valid and effectual as if
the power had come into operation and remained unrevoked at the time when the
act was done or the instrument executed, unless that person had at that time
actual notice that the power had never come into operation or of the
revocation of the power.
(8) In favour of any
person dealing with the donee of a power of attorney given under this section,
any act done or instrument executed by the donee is, notwithstanding that any
consents to the delegation that are required by subsection (2) have not been
given, as valid and effectual as if those consents had been properly given,
unless that person had at the time when the act was done or the instrument was
executed actual notice that those consents had not been given.
(9) A statutory
declaration by the donee of a power of attorney given under this section
relating to any trust or estate that the power has come into operation, or
that in any transaction the donee is acting in the execution of the trust or
the administration of the estate, is, in favour of a person dealing with the
donee of the power, conclusive evidence of that fact.
(10) The fact that it
appears from any power of attorney given under this section, or from any
evidence required for the purposes of any power of attorney or otherwise, that
in any transaction the donee of the power is acting in the execution of a
trust shall not affect with notice of the trust any person dealing in good
faith with the donee.
(11) Where it is
intended that the donee of a power of attorney given under this section shall
be entitled to transfer, or otherwise deal with, land under the operation of
the Transfer of Land Act 1893 , the power of attorney shall be in the form,
and executed and attested in the manner, prescribed by Part VI of that Act.