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Scott, Peter Dominick --- "Powers of Attorney" [2011] UTasLawRw 19; (2011) 30(2) University of Tasmania Law Review 169


Powers of Attorney

Professor Gino E Dal Pont

Australia: LexisNexis Butterworths, 2010, pp 311, ISBN 9780409327953, $200.00

‘The power of attorney occupies one of those remote corners of agency that has received comparatively little attention.’[1] Powers of Attorney provides much-needed legal commentary and analysis in the often neglected branch of agency law: powers of attorney. Powers of Attorney seeks to give a comprehensive outline of the power of attorney relationship for beginning to end in a clear and concise way and in this it is successful.

The area of powers of attorney has for a long time been discussed only under the much broader area of agency law, occupying the pages of agency texts as an afterthought. Powers of Attorney fills this gap and represents the most up-do date analysis of the area. The text examines the 'power' in great detail, providing commentary on the law across all Australian jurisdictions as well as comparative analysis of the law in other common law countries. The book is divided into five parts; after defining and distinguishing the power of attorney relationship it examines the life of the relationship from creation to end in a simple and easy to follow way. Set out consistently and logically, the text provides plentiful references and is suitable for practitioners and students alike. Powers of Attorney, whilst based on Australian law elucidates the subject in a cross-jurisdictional manner, focusing on the main characteristics which identify a power of attorney relationship: a formal instrument, empowering representation by another, for certain purposes.

The law in the area of powers of attorney is dogged with inconsistencies between jurisdictions. To this end, an outline of the different statutory frameworks governing the power of attorney is given for all Australian states as well as a historical overview of the enduring powers of attorney legislation in Australia and other common law countries. The inconsistencies are also outlined topic by topic where appropriate. The introduction of statutory frameworks has complicated the area of powers of attorney and Dal Pont gives useful guidance and commentary on the impact of legislative intervention. In outlining the duties of attorneys emphasise is given to the impact of statutory intervention in the area of fiduciary duties. Commentary on the jurisdictional discrepancy is given for not only Australian jurisdictions, but also New Zealand.

Similarly on the issue of ingredients of the ‘power’, the capacity of principals, and to lesser extent attorneys, to enter powers of attorney is emphasised, as well as highlighting potential vitiating factors. Powers of Attorney provides in depth coverage of the issue of mental capacity of principals at general law and under the various state legislative frameworks. Of particular note is the discussion on the application of Re K (Enduring Powers of Attorney)[2] in Australia and the problems of jurisdictional inconsistency which arise as a result of varying statutory tests for capacity. Again, Dal Pont goes to great length to ensure widespread relevance by detailing the formalities and other formation requirements which exist in all Australian jurisdictions. This consistently cross-jurisdictional approach ensures the far-reaching relevance of the text beyond the Australian context as well as assisting those seeking comparative analysis.

As outlined above, the text is broken up into five distinct parts which are again broken up in a logical fashion making the text useful for easily finding particular topics. This is assisted by Dal Pont's enthusiastic use of headings and sub-headings ensuring one does not get lost in the text. A key strength of the book is the use of a clear and concise style which Dal Pont employs to explain the complexities of the legislation and case law which students in particular will appreciate. This is demonstrated in Dal Pont’s highlighting of the problem of non-uniform use of terminology, for which he proposes the abolition of confusing terms such as donor’ and ‘donee’, in Tasmania and South Australia in favour of uniform use of ‘principal’ and ‘attorney’. Dal Pont also comprehensively distinguishes the ‘relationship’ from other legal vehicles purporting to create similar relationships such as contract, trust and assignment which again will be of particular assistance to students new to the topic.

Powers of Attorney is a thoroughly researched publication, replete with references from a wide range of sources making it the perfect starting point for practitioners and students alike. Commentary is provided for all the recent cases in the area as well as coverage on the impact of statutory reforms.[3] This is demonstrated by the effort to reconcile the differences between Australian jurisdictions such as formalities relating to form and execution, and the registration of powers. Furthermore where appropriate a comparative perspective is given with the utility of other common law jurisdictions further exemplifying the cross-jurisdictional applicability of the text.

Powers of Attorney is a must-have resource for those studying or practising in the area. It represents the most comprehensive dedicated text on the topic and its cross-jurisdictional approach provides much-needed comparative analysis in the area, as well as making it relevant beyond an Australian context. Powers of Attorney is set out in an easy to follow and intuitive order and provides an erudite elucidation of an oft-neglected area of law.

Peter Dominick Scott[∗]


[1] Roderick Munday, ‘The Capacity to Execute an Enduring Power of Attorney in New Zealand and England’ (1989) 13 New Zealand Universities Law Review 253, 253.

[2] [1988] Ch 310.

[3] See, eg, Powers of Attorney Act 2006 (ACT); Powers of Attorney Act 2000 (Tas); as well as the statutory reforms in other common law jurisdictions.

[∗] Third year BBus-LLB student at the University of Tasmania and member of the University of Tasmania Law Review Editorial Board for 2011.