Do all attorneys and backup attorneys need to sign my POA?

An Enduring Power of Attorney is a powerful economic document. It allows the people you appoint to manage your wealth. They step into your shoes. They open bank accounts. They sell real estate.

But a common question arises. Do all your attorneys have to sign the document at the same time?

Do all my attorneys, even my backup attorneys, need to sign for my Enduring Power of Attorney to be effective?

The short answer? Under Legal Consolidated POAs, no. They do not have to sign together. But there is a catch. It depends entirely on your State and how your attorneys are appointed.

In all 8 jurisdictions — New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Northern Territory, and the Australian Capital Territory — an attorney must accept the appointment before exercising power.

But what if you appoint more than one attorney? Or what if you appoint backup attorneys? Do the additional attorneys need to sign?

Must all attorneys of your POA sign at the same time?

Legal Consolidated POAs are drafted so that the attorneys do not all need to sign at the same time. They can sign at different times, at different locations, in different states and even in other countries.

Is there a statutory deadline for accepting a POA?

Legal Consolidated’s POAs are prepared so that there is also no statutory deadline to accept them. They can be accepted well after the person making the POA has signed. However, they cannot be used until the person accepts.

Can a primary attorney act before the backup attorney signs my POA?

Consider a husband currently working in London. He builds an Enduring Power of Attorney on our law firm’s website. He signs it today in London.

His primary attorney is his wife. The original signed POA is couriered from London to Australia. The wife then signs to accept the POA a few weeks later. The document is valid. There is no registration or anything else to do.

This works because only one person is appointed in the first instance. It also works if the backup attorneys (if any) are appointed severally (e.g. ‘jointly and severally’). This is so that the backup attorney can act alone. They are not forced to act together.

For example, in the POA, the husband may have appointed their two children as backups. Australia is a federation of six States and two Territories. Across the federation, your backups can wait to sign. The law generally delays their power, not the document’s validity.

Here is how the law applies across every Australian jurisdiction:

Do backup attorneys need to sign an NSW Power of Attorney?

Under the Powers of Attorney Act 2003 (NSW) s 19, an enduring power ‘is not effective’ until accepted. Fortunately, s 20 explicitly allows an attorney (including substitutes) to accept:

‘at the time the instrument is executed or at any time after it is executed’.

Backup attorneys sign immediately for a Victorian POA

Under the Powers of Attorney Act 2014 (Vic) s 37, an attorney must sign a statement of acceptance. However, there is no statutory time limit forcing a backup attorney to sign it immediately.

‘Acceptance by attorney

(1)     An enduring power of attorney is effective as to an attorney appointed under the power of attorney if—

(a)     in the instrument creating the power of attorney the attorney signs a statement of acceptance of appointment that is in the prescribed form…’

Does a Queensland Enduring Power of Attorney require all signatures?

The Powers of Attorney Act 1998 (Qld) s 44 mandates that the document is only effective for an attorney once the attorney signs the approved form. The backup attorneys can wait until they are needed.

When do backup attorneys sign a Western Australian POA?

The Guardianship and Administration Act 1990 (WA) s 104 requires the donee to accept the enduring power. They do not have to sign at the exact same time as the donor.

Signing a South Australian Enduring Power of Attorney

Under the Powers of Attorney and Agency Act 1984 (SA) s 6(2)b, the prescribed form requires the attorney’s acceptance. A substitute attorney’s acceptance can be executed subsequently.

6(2)  A deed is not effective to create an enduring power of attorney unless … (b) the deed has endorsed on it, or annexed to it, a statement of acceptance … executed by the person appointed to be the donee of the power.

Do backup attorneys sign the ACT Power of Attorney?

The Powers of Attorney Act 2006 (ACT) s 23 states that the attorney’s appointment is not effective until they sign an acceptance. Backups can sign later.

Enduring power of attorney ineffective for attorney unless accepted

An enduring power of attorney is effective in relation to an attorney only if the attorney has accepted the appointment by signing the enduring power of attorney.

Northern Territory Advance Personal Plan signatures

The Northern Territory replaced Enduring POAs with Advance Personal Plans, and attorneys are instead called ‘decision-makers’. An Advance Personal Plan only takes effect if you lose capacity, but the signing rules remain flexible. The Advance Personal Planning Act 2013 (NT) s 15 requires that the appointed decision-maker provide written consent. For substitute decision-makers, this can occur long after the maker signs the document.

The Northern Territory is the only outlier that decided to throw out the financial Enduring Power of Attorney completely and wrap everything into an “Advance Personal Plan” using “decision-makers.”

The Tasmanian exception: All attorneys must sign the POA

Tasmania is the strict exception. Under the Powers of Attorney Act 2000 (Tas) s 30, all attorneys must accept the appointment before mandatory lodgement with the Recorder of Titles. Your backup attorneys cannot wait to sign. No other state has this restrictive rule.

30(2) A deed or instrument is not effective to create an enduring power of attorney unless … (c) the deed or instrument has endorsed on it … a statement of acceptance … executed by the person appointed to be the attorney.

Do all attorneys need to sign my POA if appointed jointly?

What if the attorneys are appointed to act ‘together’? That is a different matter.

If you appoint your attorneys jointly, they are forced to make decisions together. In this instance, all jointly appointed attorneys must sign and accept the document before any of them can act. They can sign on different days, and even in different countries. But until all sign, none can act. This is because you forced them to act together.

Also, if one of the ‘joint’ attorneys dies or loses mental capacity, the other cannot act. The POA is dead.

This is why it is more common to appoint attorneys ‘jointly and severally’. They can still act together, but crucially, it means each can act alone. The death of one does not stop the other from acting.

ACT provides an example of when all joint attorneys need to sign the POA

However, the Australian Capital Territory offers a rare exception to this strict rule that all joint attorneys must sign. If you appoint three or more joint attorneys in the ACT, the law does not require you to wait for everyone. As long as at least two have signed, those two can start managing your affairs immediately. But there is a catch: the moment the remaining attorney finally signs their acceptance, that temporary freedom ends. From that day forward, all of them are chained together and must act jointly. (Hope that all three of them live a long life without dementia!)

For a small population, the government is very good at explaining the effects of appointing more than one attorney either to act together or separately. Helpfully, it states:

POWERS OF ATTORNEY ACT 2006 [ACT]

Section 28 Effect of joint attorney not accepting enduring power of attorney

    (1)     This section applies if—

        (a)     an enduring power of attorney authorises 3 or more attorneys to exercise a power together but not separately; and

        (b)     the power of attorney does not require a stated number of attorneys to accept the power of attorney before the attorneys may exercise the power; and

        (c)     not all, but at least 2, of the attorneys have accepted the power of attorney.

    (2)     The attorneys who have accepted the power under the enduring power of attorney may exercise the power.

Example

Alex authorises Beryl, Claude and David to act together as attorneys under an enduring power of attorney. Beryl and David accept the power of attorney, Claude does not. Beryl and David may exercise a power under the power of attorney together. Claude accepts the enduring power of attorney later. After Claude accepts, Beryl and David cannot exercise the power without Claude.

    (3)     However, if the enduring power of attorney requires a stated number of attorneys to exercise a power together, the power must not be exercised unless that number of attorneys accepts the power of attorney.

When does a backup attorney sign my POA?

Let us return to our example. The husband appoints his son in Germany as his backup attorney. The son has not signed the document yet.

Three years later, the wife loses her mental capacity. You quickly courier the Enduring Power of Attorney to the son. He signs to accept the appointment in Germany. The son can now act.

(Except for Tasmania) the delayed signing is fine because:

• The POA allows substitute (successor) attorneys. E.g. Wife and then son.

• The triggering condition (the wife’s incapacity or death) has occurred.

• The successor properly accepts the appointment under the relevant State Act. E.g. the son accepted the POA by signing in front of the required witness for the applicable state.

Must backup attorneys sign my POA for the Land Titles Office?

People are commonly told, especially by bank clerks, that an Enduring Power of Attorney must be lodged at a local titles office to be effective.

That is not true. Only in Tasmania is there a mandatory registration process before a POA can operate.

For the rest of Australia, registration is not required for everyday use. You only need to lodge your POA with the local titles office when you are actually dealing with land (such as selling or transferring real estate).

It costs money to lodge the document with the titles office. It costs money to withdraw it. It costs more money to lodge an updated Enduring Power of Attorney.

Furthermore, some land title registries heavily scrutinise incomplete acceptance sections. If a backup attorney has not signed, this can delay lodgement. As a practical step, many practitioners obtain all acceptances upfront where land dealings are anticipated.

To put it bluntly, if you ever need to use the POA at the local titles office, then, at that time, make the effort to have the backup attorneys (if any) also accept. Do not look for trouble when you are dealing with a government regulator.

Do all attorneys and backup attorneys need to sign my POA in Tasmania?

Tasmania handles things differently.

In Tasmania, under the Powers of Attorney Act 2000 (Tas) s 16, an enduring Power of Attorney generally must be registered with the Recorder of Titles before it can be relied upon for most dealings. This makes it even more important to have all relevant attorneys complete their acceptance before registration.

Free help in dealing with banks

Recently, a bank declined to accept a Legal Consolidated Enduring POA because it was not registered with the titles office, and the backup attorneys had not signed.

That is incorrect in law. Within 48 hours, we provided legal advice to the bank, and the POA was accepted. Legal Consolidated POAs come with free advice for the adviser, client and their attorneys.

Protect your wealth with a law firm POA

About 32 per cent of documents built on government websites fail. You only discover the flaws when it is too late.

By building your Enduring Power of Attorney on Legal Consolidated’s website:

• get free updates for life
• you get free advice for life
• when the time comes your attorneys and their advisers can telephone us for free advice

Do not let your backup attorneys’ absence stop you from building your POA. With Legal Consolidated, your attorneys can sign anywhere in the world, at different times.