There is currently no clear judicial or legislative distinction between a power of attorney and a mere authority notwithstanding the different scope of powers they contain. Accordingly, a Notary Public should always act with caution when preparing an authority for one person to act as the agent of another.
An Australian Notary Public will often encounter a power of attorney in one of two scenarios:
- When they are required to certify that an instrument creating a power of attorney has been properly executed so as to enable the document to be used in a foreign jurisdiction; or
- When a Notary Public is requested to authenticate the execution of a document pursuant to an existing power of attorney.
“Attorney” simply means ‘agent’ or ‘authorized person’ and when used in the context of a power of attorney, the scope of power vested in the “attorney” is generally set out in clear terms. However, a Notary Public may sometimes be confused where there is more than one attorney specified in the document.
It has become common practice for powers of attorney to empower two or more attorneys to act ‘jointly and severally’. In the case of Guthrie v Armstrong (1822), it became Australian law that when a power is granted to two or more individuals ‘jointly and severally’, it can be exercised ‘as all or any of them should think fit’. However, in the subsequent case of Kendle v Melson it was held that it is more appropriate for the validity of such powers to be assessed on a factual basis in order to improve commercial efficiency. Accordingly, when there is more than one attorney a Notary Public may err on the side of caution and not authenticate the execution of a document as their power to execute the document in question may not be clearly defined.
A Notary Public must keep in mind that although individuals may lawfully delegate a wide range of powers and authorities, there are certain powers that must be exercised personally, and which cannot be delegated to another person.
A common example of this is the office of company director, the duties of a company director must be exercised personally by the director themselves and cannot be delegated.
Similarly, a trustee who may legally delegate purely ministerial functions of their position as well as, appoint professional agents and appoint attorneys in a foreign jurisdiction to act in relation to trust property may not, however, delegate their own position as trustee to another person.
The formal requirements
It is generally true that formal aspects of powers of attorney are governed by the law of the place where the power of attorney is granted.
A Notary Public who is familiar with the formal requirements will know that a power of attorney granted in Australia must always be in writing, and when prepared for domestic purposes, they are typically prepared as deeds. On the other hand, when the power of attorney is prepared for use in civil law jurisdictions, there is no need for the instrument to conform with the requirements of a deed.