ByLawyers News and Updates

Power of attorney – NSW

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The prescribed forms for creating both a general and an enduring power of attorney in New South Wales have been slightly amended.

The Powers of Attorney Regulation 2024 commenced when it was published on 23 August 2024.

The regulation repeals and remakes, with minor amendments, the Powers of Attorney Regulation 2016, which would otherwise be automatically repealed on 1 September 2024 by virtue of s 10(2) of the Subordinate Legislation Act 1989.

The 2024 regulation prescribes—

  • the classes of persons who may certify that a document is a true and complete copy of an instrument creating a power of attorney, and
  • the form to create a general power of attorney, and
  • the form to create an enduring power of attorney, and
  • savings and formal matters.

The provisions in the 2024 regulation are substantially the same as the 2016 regulation. The only amendments are to the Important information and the Notes for completion in both the general and enduring powers of attorney forms, simply to update the name and contact details for  NSW Land Registry Services, and where to obtain further information, being: the Office of the Registrar General, and the NSW Trustee and Guardian.

By Lawyers Powers of Attorney (NSW) guide contains six versions of the powers of attorney precedents, general and enduring, catering for various iterations of attorney/s and substitute attorneys. These precedents are automated for LEAP users. They have all been updated to reflect the new prescribed forms, and a link to the new regulation has been included in the commentary.

COVID measures are here to stay – All states

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Many temporary COVID measures introduced across Australia during the pandemic are here to stay.

New South Wales and Queensland have now proposed legislation permanently retaining some COVID measures, such as remote witnessing. Victoria have already legislated to retain some COVID measures. The Commonwealth has extended temporary measures for companies.

With other states and territories expected to follow suit, the long-term legal legacy of COVID-19 looks like being significant.

New South Wales

The Electronic Transactions Amendment (Remote Witnessing) Bill 2021 will permanently allow certain documents to be witnessed in real time over an audio-visual link.

Further, for an additional 12 months from the date of assent, the list of people who can witness NSW statutory declarations will be extended to the expanded list of witnesses set out in Schedule 2 of the Statutory Declarations Regulations 2018.

Queensland

The Justice and Other Legislation Amendment Bill 2021 will make permanent some of Queensland’s  temporary COVID measures including:

  • Remote witnessing and electronic signing of affidavits, statutory declarations and some oaths; however electronic signatures on statutory declarations can only be used for a land or water dealing where electronic conveyancing is used.
  • Powers of attorney for corporations, partnerships and unincorporated associations, but not sole traders, can be signed electronically, in counterpart, by split execution and without a witness; however, if a general power of attorney is used for a land or water dealing it must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Advance health directives can be certified as to capacity by nurses, in addition to doctors.
  • Deeds can be made in the form of an electronic document, electronically signed, made in counterpart and by split execution, generally without a witness. The Bill also removes the requirement for deeds to be sealed, requiring the deed to contain a clear statement that it is executed as a deed. However, deeds lodged or deposited in relation to land and water dealings must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Private applications for temporary protection orders in domestic and family violence matters may be filed electronically, with a hearing date allocated and the application served before the application is verified. Verification can occur later, when the magistrate hears the application. The Magistrates Court may hear any part of family and domestic violence proceedings by audio visual link.

South Australia

The Oaths (Miscellaneous) Amendment Act 2021 commencing on 1 December 2021 amends the Oaths Act 1936 (SA) to:

  • Provide continuity following the expiration of the COVID-19 Emergency Response Act 2020 and its associated regulations through the Oaths Regulations 2021.
  • Introduce a Code of Practice – Affidavits to be followed by deponents and witnesses in the making of affidavits.
  • Introduce a Code of Practice – Statutory Declarations to be followed by declarants, and witnesses to ensure statutory declarations are taken in accordance with the Oaths Act 1936.
  • Expand the persons before whom a statutory declaration may be made as stated in the new Schedule 1 to the Oaths Act 1936.
  • Include additional offences for those falsely representing themselves as authorised witnesses to a statutory declaration or affidavit.

By Lawyers keeps you up to date

All relevant By Lawyers guides, including the dedicated guide Dealing with COVID-19 legal issues – Some practical information which appears at the top of all By Lawyers matter plans, have been or will be updated to reflect these changes as and when they take effect.

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