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So, you’ve taken the time to prepare a power of attorney with the advice of your legal team. What’s next?
Some States in Australia require you to register a power of attorney before your attorneys can use it to undertake certain actions on your behalf. Knowing if this is required can significantly reduce the white noise for your attorneys in the event that they need to rely on the power granted to them.
The term ‘register’ in its broadest sense can meet lodgement of the document with any relevant third party [ for example, banks, trustee registers, etc. ]
However, in practice, the term ‘register’ in this context usually means notifying the Titles Registry of the existence of your power of attorney.
Whether you need to register your power of attorney depends on:
1. The particular State
2. Whether you need to rely on the power of attorney for the particular dealing.
Some States require registration with the Titles Registry within a certain period of time of execution to either make it effective for dealing with real property. Where this is not done, additional steps may be required.
For States that don’t require registration within a period of time from execution, the main reason for registration is to allow your attorneys to deal with your real property.
Below is a general summary of each State’s requirements:
|State||The requirement to register appointment of financial attorneys|
|Queensland||Only required before any instrument signed by the attorney can be registered with the Queensland Titles Registry|
|New South Wales||Only required before any instrument signed by the attorney can be registered with the New South Wales Titles Registry|
|Victoria||Registration not required. However, either a certified copy or original of the power of attorney will need to be produced when dealing with land.|
|Western Australia||Only required before any instrument signed by the attorney can be registered with the WA Titles Registry. |
If a power of attorney is to be registered, it must be lodged within three months of being made or additional documentation will be required.
|South Australia||Only required before any instrument signed by the attorney can be registered with the South Australian Titles Registry|
|Northern Territory||Only required before any instrument signed by the attorney can be registered with the NT’s Titles Registry|
|Tasmania||Must be registered with after execution [and not merely for dealing with property] with the Tasmanian Titles Registry|
|Australian Capital Territory||Only required before any instrument signed by the attorney can be registered with the ACT’s Titles Registry|
An important distinction is that the above relates only to powers of attorney for financial matters.
Where the documents also govern the appointment of attorneys for personal/medical matters,
In most States, registration generally requires:
1. the completion of the relevant Titles Registry form;
2. the production of either a certified copy or original of the power of attorney; and
3. the payment of a lodgement fee.
As noted above, additional paperwork may be required where for example, there has been a delay between the execution of the document and its registration.
There are also steps and documents required to revoke a power of attorney that has been registered with the relevant Titles Office.
While most States are, generally speaking, supposed to recognise a power of attorney made in another State, provided it was validly made in that State.
However, in practice, it is known to be difficult to get a Titles Registry to accept a power of attorney from another State.
As such, a key part of your estate planning process should be to consider whether you need a power of attorney for each State you own real property in. As always, specific advice relevant to your circumstances should be obtained.
You should also discuss with your estate planning advisor whether registration of your power of attorney is required or is beneficial in light of your circumstances.
General Advice Disclaimer
Information provided on this website is general in nature and does not constitute financial or legal advice. Every effort has been made to ensure that the information provided is accurate, but information may become outdated as legislation and new government announcements are made. Individuals must not rely on this information to make a financial, investment or legal decision as it does not take into account their personal circumstance. Before making any decision, we recommend you consult a licensed adviser or legal practitioner to take into account your particular objectives, circumstances, and individual needs.