Sole practice
Power of attorney
If you are a sole practitioner or the sole director of an incorporated law firm, you must fulfil the following requirements under the Lawyers and Conveyancers Act 2006 (LCA) about assigning a power of attorney.
You must, by 1 November 2008, give a power of attorney to an agent to conduct your sole practice (use this form), or to act as the board of your incorporated firm (use this form), if you are not able to conduct the practice yourself. You must also, in your power of attorney, appoint an alternate. You must then give notice to the Law Society of the fact you have given the power of attorney, the date of it, and the name and business address of the donee.
The requirements are set out at ss44-45 and Schedule 1 of the LCA.
If you already have a power of attorney in place under s70 of the Law Practitioners Act 1982, it will be deemed to have been given under the new act – as long as it conforms with clauses 2 and 6-9 (other than cl.7(c)) of Schedule 1. Those clauses require, among other things, prior written consent by the intended donee, the appointment of an alternate, and that the power of attorney provides for the donee to exercise particular powers and duties in given circumstances and for given periods.
Why do you need an agent (and an alternate)?
If, for instance, you are incapacitated, take a holiday, disappear or are struck off the roll, you need someone to step in to run or wind up your practice. That person is your agent or, if he or she is not available, the alternate. For more detail about when an agent might need to step in, see clauses 7 and 8 of Schedule 1 and s163 of the LCA.
Who can be your agent or alternate?
Both need to be entitled to practise on own account so that either can step into your shoes at short notice if necessary. If you are a trust account supervisor (TAS) your agent and alternate also need to be TAS-qualified. For ease of transition, they will, ideally, be in a local practice. For peace of mind, they will be people you trust. Given that it is a responsibility not to be taken lightly, why would someone agree to act as an agent or alternate? They (and you) may see it as a quid pro quo; they might meet your need for an agent/alternate and you meet theirs – or someone else’s.
How do the power of attorney requirements under the LCA differ from those under the Law Practitioners Act?
You must give notice to the NZLS, rather than the district law society, of the details of your power of attorney. The forms will differ accordingly. For the full picture, it is important that you read ss44-46 and Schedule 1.
It is an offence to fail to give a power of attorney, or to revoke one, other than in accordance with the provisions of Schedule 1, or to fail to give the required notice to the NZLS. These offences are punishable by significant fines – up to $50,000 in the case of an individual and up to $100,000 in the case of a corporation.