"Powers of attorney" is essentially about transferring powers from a principal to an agent. Every person may delegate authority to perform all lawful acts by means of a power of attorney unless specific statutory or common law provision excludes the right. At the time, the power is given the principal must have the mental capacity to understand both the act of appointment and also the nature of the transactions the attorney is to carry out under the power. Even a minor who understands the act of giving a power of attorney may make an appointment, but the attorney has no greater capacity than the minor. Trustees and personal representatives are in a special position as to capacity to appoint attorneys, please ask a solicitor in this office for further details about this.

In general, a person cannot execute a deed on behalf of another unless authorised by deed. For this reason, we propose that the powers of attorney in your case be made by deed. Please note that the attorney cannot bind the principal by any act beyond the scope of his authority. The Deed should therefore mention in express words any power, which it is desired to confer. For instance, a general power of attorney does not authorise the agent to make personal decisions, such as decisions relating to medical treatment.

An attorney cannot exercise a power of attorney for their own purposes. But an attorney, given authority to make a particular type of contract, can bind their principal by such a contract entered into with a third party acting in good faith, even though they are acting for their own purposes.

Incapacity of donor

Ordinarily a power of attorney ceases to be effective upon the donor becoming incapacitated through senility or otherwise. However, provision is usually made for some powers of attorney to be irrevocable, typically if the power is given for a short period, or for valuable consideration, or to secure an interest of the agent. The Conveyancing Act provides for the creation of protected powers of attorney which continue to be effective for acts within their scope even if the principal has lost the capacity to understand the nature of the act at the time of the act through unsoundness of mind. A general power may be given as a protected power. The instrument must be expressed to be given with the intention that it will continue to be effective notwithstanding that, after its execution, the principal suffers loss of capacity through unsoundness of mind, and be attested by a prescribed person (not being the agent), and must have endorsed on or annexed to it a certificate by that prescribed person stating that he explained the effect of the instrument to the principal before it was executed. Notwithstanding anything in the instrument creating the power, the court may revoke the power.

Registration

A power of attorney may be registered in the General Register of Deeds maintained by the Registrar-General. The power of attorney must be accompanied by a certificate in a form approved by the Registrar-General setting out particulars of or relating to the instrument and signed as prescribed. No conveyancing or other deed (not being a lease or agreement for a lease for a term not exceeding three years) and no memorandum operating by the Conveyancing Act as a deed executed by the attorney in pursuance of the power will be of any force or validity unless the instrument creating the power has been registered, provided that on the registration of the power every such conveyance, deed or memorandum will take effect as if the power had been registered before the execution of the conveyance, deed or memorandum. An instrument revoking the power may also be registered.

Protection of attorney

An attorney acting within the scope of the power without notice of revocation or suspension of the power is entitled to rely on the power as against the principal and any other person. It is no longer necessary for the attorney to make a declaration of non-revocation.

Proof of instrument creating powers

A document may be certified to be a true copy of the contents of an instrument creating a power of attorney by having endorsed on it a written certificate to that effect by the principal or certain people. The certifier must sign each of the documents. The certified document is evidence as against the principal of the execution and contents of the instrument, and as against any other person of the contents of the instrument.