Registering a Power of Attorney for Property

In many places, a power of attorney must be registered or deposited with the land registry before the attorney can sign documents dealing with land, such as a transfer or mortgage. In Australia, each state and territory sets its own rules. Overseas, the foreign registry or notary decides.

Key takeaways

• A power of attorney used to deal with land often needs to be registered or deposited with the land registry first.
• In Australia, the rules differ between states and territories, including which powers must be registered and the forms used.
• Registration lets buyers, lenders and the registry check the attorney's authority on the public record.
• Overseas, many countries have their own registration or deposit step, often after an apostille and sworn translation.
• If the power is later revoked, the revocation usually needs to be registered in the same place.

Why register a power of attorney for land?

When an attorney signs a transfer or mortgage on your behalf, the buyer, the lender and the land registry all need to know that the attorney really has authority, that the power covers that dealing, and that it has not been revoked. Registering or depositing the power with the land registry creates an official record that they can check. Without it, the registry may refuse to register the transaction, and the buyer or lender may refuse to proceed.

Registration also protects you, and the attorney. A registered power, and a registered revocation if you later end it, gives certainty about when the attorney's authority began and ended. Our guide to powers of attorney explains the different kinds of power.

How does it work in Australia?

Each state and territory has its own land registry and its own rules about powers of attorney used for land. In several jurisdictions, a power of attorney must be registered with the land titles office before an attorney can execute a dealing with land under it; in others, the registry may instead require the power, or a certified copy, to be produced or lodged with the dealing. Tasmania goes further, generally requiring enduring powers of attorney to be registered with the Land Titles Office before they can be used at all.

The forms, fees and exact requirements differ, and they change from time to time. Some registries have specific forms for registering powers of attorney; some require the original or a certified copy; some require particular witnessing. Check the current requirements with the land registry in the state where the land is, or ask your conveyancer or lawyer, before relying on a power for a property transaction.

Question	Why it matters	Where to check
Must the power be registered before use?	The dealing may be refused if not	The state or territory land registry
Which form of power is accepted?	General, enduring and foreign powers are treated differently	The registry's guidance or your conveyancer
Original or certified copy?	Some registries keep what is lodged	The registry's lodgement rules
How must it be witnessed?	Especially if signed outside Australia	The registry and the state's power of attorney law
Is it still in force?	A revoked power cannot be used	The register, and the donor's circumstances
Does the power cover this dealing?	It must authorise the transaction	The power's wording, with legal advice

What if the power was signed overseas?

If you live abroad and sign a power of attorney so someone in Australia can deal with your Australian property, the power must satisfy the rules of the state where the land is, including any requirements for documents signed outside Australia. Those rules may specify who can witness it overseas, such as a notary or an Australian consular officer, and whether any further certification is needed. Your Australian conveyancer or lawyer should prepare the power and tell you exactly how to sign it.

A power signed overseas is usually an Australian document in substance, so it does not generally need an apostille for Australian use; the witnessing rules are what matter. Our guides to Australian documents signed overseas and international powers of attorney cover the details.

What about property overseas?

The same idea applies abroad, often with extra steps. Many countries require a power of attorney used for land to be registered, deposited with a notary, or recorded with a public office before the attorney can act, and a power signed in Australia usually needs a notarial certificate, a DFAT apostille or authentication, and a translation into the local language first. In some countries, the power must be registered within a set time after it arrives.

Ask the lawyer, notary or registry in the country concerned what is needed, in what order, and how long it takes. Get the wording of the power from them too, because a power drafted for Australia may not satisfy a foreign registry. Check the country's position on the HCCH status table. Our guide to selling overseas property covers the common steps.

What happens if the power is revoked?

If you end a power of attorney that has been registered, the revocation usually needs to be registered in the same place, so the public record shows the attorney no longer has authority. Until that happens, a buyer or lender relying on the register may still be entitled to deal with the attorney. Tell the attorney in writing too, and anyone else relying on the power. The same applies abroad. A power usually also ends on your death, and in some cases on loss of capacity unless it is an enduring power.

How long does registration take?

It depends on the registry and on whether everything is in order, and no general timeframe can be relied on. What matters is allowing enough time before any settlement or signing date, particularly if the power was signed overseas and has to travel, or if a foreign registration requires an apostille and translation first. Ask your conveyancer or the registry how much time to allow, and register the power as soon as it is signed rather than waiting until a sale is agreed.

What does the attorney need to sign?

Once the power is registered, the attorney signs the transfer, mortgage or other dealing on your behalf, usually in a form that shows they are signing as attorney, and often quoting the registration details of the power. In electronic conveyancing, the attorney may instead sign a client authorisation so the conveyancer can lodge the dealing, and the attorney's own identity must be verified. The conveyancer will give the attorney precise instructions, and a dealing signed in the wrong form can be requisitioned by the registry, delaying settlement.

What about enduring powers of attorney?

An enduring power of attorney continues if you lose capacity, and it is often the power used when an older person's home is sold to fund care. The same registration rules for dealing with land usually apply, but the registry, buyer or lender may ask for extra evidence, such as confirmation that the power has taken effect if it only operates on incapacity. Plan ahead: registering an enduring power while you still have capacity, where the state allows, can save your family time and stress later. Our guide to notarising a power of attorney covers the overseas version.

How do you get it right?

1. Ask a lawyer or conveyancer where the land is to prepare a power that suits the registry.
2. Sign it correctly, before the witness the rules require, in Australia or overseas.
3. Arrange any notarisation, apostille and translation required for land abroad.
4. Register or deposit the power with the land registry before the attorney deals with the land.
5. Keep records, and register any revocation in the same place if you later end it.

What does this look like in practice?

Here is an illustration, not a real case. Arun lives in Singapore and owns an investment property in Brisbane, which he wants his sister to sell. His Queensland lawyer prepares a power of attorney.

The lawyer explains that the power must be signed before a witness the Queensland rules accept for documents signed overseas, and registered with the Queensland titles office before his sister can sign the transfer. Arun signs before a notary in Singapore, couriers the original to the lawyer, and the power is registered weeks before the sale is advertised. His sister then signs the transfer as his attorney, and settlement proceeds.

In short

A power of attorney used to deal with land often has to be registered or deposited with the land registry before the attorney can act, so buyers, lenders and the registry can check the attorney's authority. In Australia, each state and territory sets its own rules; overseas, the foreign registry decides, often after an apostille and translation. Register early, and register any revocation in the same place.

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Preparing a power of attorney for property in Australia or overseas? Send us your lawyer's instructions, and we will explain each notarial step before you book.