The Instruments (Enduring Power of Attorney) Act 2003 came into operation on 1 April 2004. It amended the Instruments Act 1958 (“the Act”) by adding Part XIA. The amendments set out new requirements for preparing, executing, witnessing and revoking enduring powers of attorney.

The requirements for witnessing enduring powers of attorney have changed considerably as a result of the amendments and it is recommended that a power of attorney only be prepared by a solicitor with the solicitor being one of the witnesses.  

Enduring powers of attorney may now be specific

Section 115 of the Act (as amended) provides that a donor may provide conditions and limitations upon, and instructions about the exercise of the power. Section 117 provides that a donor may specify in an enduring power of attorney a time from which, circumstances in which, or occasions on which a power is exercisable.

In the past, when it was not possible to limit an enduring power of attorney, it appears some solicitors prepared powers of attorney on instructions from the proposed attorney. This practice is now completely unacceptable. When  a solicitor is preparing a power of attorney they should be acting only for the donor and so that the solicitor will only take instructions from the donor without the proposed donee present at all (attorney).

If you would like more information or a quote for preparing a power of attorney (or discounted quote for multiple powers of attorney) please email us at info@rigolilawyers.com.au