Enduring powers of attorney in Tasmania 

This article states the law of Tasmania. The Powers of Attorney Act 2000 (Tas) contains a requirement found nowhere else in this series: an act done under a power of attorney has no legal effect unless the power was registered before the act was done¹. The prior question in a Tasmanian problem is therefore not only whether the instrument is valid, but whether it was on the register at the relevant time.

Registration is a precondition to effect

Section 16 provides that an act, deed or instrument done, executed or signed under a power of attorney by the attorney "has no legal effect unless the power of attorney has been registered under this Act before the act, deed or instrument is done, executed or signed", or, for an enduring power subject to a Tribunal order under s 33, unless a copy of that order is so registered.

Three consequences follow, and each is worth stating separately.

A perfectly executed instrument confers nothing until registered. Validity of the instrument and effectiveness of acts under it are different questions, and s 16 addresses the second.

The timing is strict. Registration must precede the act; later registration does not cure an act already done. A student should identify the date of the transaction and the date of registration as separate facts.

And where a Tribunal order under s 33 affects an enduring power, the order itself must be registered for acts under the power to have effect.

This is a materially different scheme from Western Australia, South Australia and New South Wales, where registration is not a precondition to effect. Assuming the Tasmanian rule elsewhere, or its absence here, is an error in both directions. But do not turn "no registration requirement" into "operates on execution": in New South Wales an ENDURING power confers no authority at all until the attorney accepts the appointment by signing the instrument (Powers of Attorney Act 2003 (NSW) s 20(1)), which may happen well after the principal executes it, and where several attorneys are appointed the power operates only for those who have accepted (s 20(2)). Registration and commencement are separate questions, and the comparison here is about registration.

Section 17(1) supports the register's reliability: where a power has been registered, notice of the death, bankruptcy or insolvency of the donor, or of revocation of the power, is itself to be registered. A person dealing with an attorney can therefore interrogate the register rather than relying on assertion.

One donor only

Section 9(1)(a) requires that a power of attorney made or created under s 18 or s 30 must not have more than one donor.

That precludes a joint instrument by, for example, a married couple. Each donor must execute a separate power. It is a simple rule and an easy one to fall foul of where parties assume a single family document will serve.

Two independent witnesses for an enduring power

Section 9(1)(b) sets different witnessing requirements according to the kind of power.

For an enduring power, the donor's signature must be attested by two witnesses, neither of whom is a party to the instrument nor a close relative of a party, each of whom witnessed it in the presence of the donor and of each other (s 9(1)(b)(i)).

For any other power of attorney, one witness suffices, who must not be a party and must witness in the donor's presence (s 9(1)(b)(ii)).

Section 9(1)(ba) adds a further requirement for enduring powers: the instrument must include a declaration by each witness that he or she is neither a party to the enduring power nor a close relative of a party.

Tasmania therefore combines features seen separately elsewhere. Like Western Australia it requires two witnesses; unlike Western Australia, it disqualifies close relatives of a party rather than prescribing professional qualifications; and like New South Wales it requires a witness statement on the face of the instrument, though the New South Wales certificate is about the donor's understanding rather than the witness's independence.

Five approaches to execution

• Tasmania — two witnesses, neither a party nor a close relative of a party, each present with the other, plus a witness declaration of independence; and registration before any act.
• Western Australia — two witnesses authorised to take declarations, or one so authorised and one qualified under s 104(3), plus a statement of acceptance including by substitutes.
• New South Wales — one prescribed witness who must explain the instrument and certify that the principal appeared to understand it.
• South Australia — one attesting witness authorised to take affidavits, plus a statement of acceptance by the donee.
• ACT — statutory limits on who may be appointed rather than a distinctive witnessing regime.

Each jurisdiction has chosen a different guard against the same risk. An instrument valid in one may fail in another, which is why the recognition provisions matter.

Applying this in a problem question

1. Separate two questions: is the instrument valid, and had it been registered before the act in issue?
2. Apply s 16 to each transaction by date; registration after the event does not cure it.
3. Where a s 33 Tribunal order exists, check whether the order was registered.
4. Confirm the instrument has only one donor under s 9(1)(a).
5. For an enduring power, check both witnesses were independent, present together, and that the s 9(1)(ba) declaration appears on the instrument.
6. Where a third party dealt with the attorney, consider the register and s 17 notices of death, bankruptcy or revocation.

Self-check

• Have I asked when the power was registered, not just whether it was valid?
• Have I applied s 16 transaction by transaction?
• Have I checked both witnesses were independent and present together?
• Have I looked for the witness declaration required by s 9(1)(ba)?