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Arranging Power of Attorney

I’m about to go for an overseas trip but I’m expecting that I would like to put in place an Attorney to sign documents off for me when I need it but have a complicated structure involving trusts and companies.  How do I do this?

There are a few ways that powers can be arranged.  It depends on your structure as to what power(s) is appropriate

In your circumstances you only wish for your attorney to act when you are not able to physically sign documents yourself.  If this is the case then a standard power of attorney and deed of delegation can be put in place.  The terms allow your attorney to act and sign on your behalf.  You can put in place limitations if you wish and also stipulate any further conditions for its use.

The advantage of this document is that it contains a deed of delegation which allows the attorney to act in your place in any will or trust that you are appointed as a trustee.  This can only been done when you are absent from the country and/or if you are temporarily physically incapable but this means that if you are using a trust structure in your property development you will not be hamstrung when it comes to signing.

Often people put in place enduring powers of attorney in relation to property.  An enduring power of attorney will allow an attorney to only sign documents and make decisions on your behalf personally.  You can also choose whether you would like it to apply both now and in the event you become mentally incapable or whether it only takes effect if you become mentally incapable.  This would not be appropriate if you do not wish for your attorney to continue making decisions for you after you become unwell.

A company is a separate legal person and even though you may control your company completely, signing a personal Power of Attorney as above would not give your Attorney the right to sign on behalf of your company.

You have two options, you can either have a Power of Attorney granted by the Company in favour of your Attorney or you can appoint an Alternate Director to act in your place while you are away

In either case you should consult the constitution as to whether there are provisions relating to this.  If you would like to appoint an Alternate Director then you would need a provision for this in the company constitution.

When appointing an attorney you can usually appoint more than one attorney and you can stipulate whether they must act unanimously or severally.  It is important to ensure that your attorney is someone who you trust completely.

Whichever powers you put in place, it should be done in consultation with your solicitor to ensure that the powers work for your structure and needs as well as being drafted appropriately.  A badly drafted power of attorney can be worse than not having one at all.

Michael Hemphill.

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