Individuals and companies can request a power of attorney in Australia. It refers to a document that grants the right of legal representation to a third party, who can be a representative of a company, a family member, an individual, a lawyer, etc. The third party must act in good faith, in the benefit of the entity that grants the power of attorney in Australia, and within the limits stipulated in the document.
The power of attorney (POA) can be used for a variety of purposes stipulated by the law. Although this document grants the right to be legally represented by a third party, it must be noted that it can’t be signed for all legal issues – for instance, it can’t be used when drawing a will. Our team of lawyers in Australia can assist with advice on how to sign a POA and when you can request this document.
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Types of power of attorney in Australia
The legislation in Australia provides for 2 main types of POAs, as follows:
- the general POA, which can be signed when the principal (the person requesting the POA) has capacity to make decisions on various legal and financial matters, but opts to be legally represented by another party;
- the enduring POA – it applies when the principal no longer has the capacity to make decisions concerning personal, financial or legal matters.
The 1st type of POA can be requested by an individual in cases when he or she does not have the time to take care of certain matters or when the person is overseas and can’t physically be present in Australia at the moment when a legal issue needs to be initiated.
It is also possible to sign it when an individual simply wants to delegate the task to a trusted party, who has the abilities and experience in handling the respective situation.
This can happen when opening a business, signing a contract, a rental agreement, addressing local authorities, all of which are examples that can be easily managed by our Australian lawyers, whose daily work activities revolve around similar situations.
A general POA can be signed for a specific legal matter (selling a property, signing a contact, etc.) or for a determined period of time, during which the party that has the right of legal representation can act on behalf of the principal.
The other type of POA, the enduring POA, is signed when a person considers or believes there is a risk that he/she will lose his/her capacity to handle personal affairs (due to physical or progressive mental illness). However, at the moment when the document is signed, the person must have the capacity to understand the legal implications deriving from the POA.
Given that the enduring POA is signed for a vulnerable scenario for the principal, it is strongly recommended to select individuals who are trustworthy, such as our attorneys in Australia. Please know that the rules for signing the power of attorney in Australia may slightly vary from one state to another.
Applicable law
A power of attorney in Australia can be regulated by different laws, depending on the state where the document needs to be signed (because of this, different procedures and requirements may appear in practice). In the list below, our law firm in Australia presents a few of these rules and regulations:
- the applicable legal framework is imposed at a state-level (in Queensland, the law is given by the Power of Attorney Act 1998, in New South Wales, by the Powers of Attorney Regulation 2024, etc.);
- the number of witnesses also varies from one state to another when signing an enduring POA (in Queensland it is necessary to have 1 witness, while in Western Australia or Victoria, the document can be signed only in the presence of 2 witnesses);
- in all states, the enduring POA may be requested when the principal is at least 18 years old;
- it is also possible to grant a POA using legal aid methods in states such as Western Australia, where this service is granted to elderly persons above the age of 65.
Please contact our Australian law firm for more details on the provisions that can be included in the POA. If you live in the region of Sydney or you need to handle a legal issue here, you can address our lawyers in Sydney.