Lawyers and Conveyancers Act 2006

Schedule 1 Provisions requiring appointment of agent to conduct sole practice or act as board of incorporated firm

s 44

Appointment of agent to conduct sole practice or act as board of incorporated firm

1 Interpretation

In this schedule,—

appropriate society means,—

(a)

in relation to a lawyer or incorporated law firm, the New Zealand Law Society; and

(b)

in relation to a conveyancing practitioner or incorporated conveyancing firm, the New Zealand Society of Conveyancers

donee means,—

(a)

in relation to a power of attorney given by a lawyer, the lawyer or alternate to whom the power of attorney is given; and, if the power of attorney is given to 2 or more lawyers or alternates, includes all or any of those lawyers or alternates acting jointly or severally; and

(b)

in relation to a power of attorney given by a conveyancing practitioner, means the conveyancing practitioner or alternate to whom the power of attorney is given; and, if the power of attorney is given to 2 or more conveyancing practitioners or alternates, includes all or any of those conveyancing practitioners or alternates acting jointly or severally

donor means, in relation to a power of attorney given by a practitioner, the practitioner by whom or on whose behalf the power of attorney is given

power of attorney means, in clauses 19 to 25, a power of attorney given under clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1).

Compare: 1982 No 123 s 69

2 Appointment of agent to conduct sole practice of lawyer

(1)

Every lawyer to whom this schedule applies by virtue of section 44(1)(a) must, within 3 months after the date of the commencement of this clause or, as the case may require, the date of his or her commencing to be in practice in the way described in section 44(1)(a), give to some other barrister and solicitor or barristers and solicitors entitled to practise on his or her or their own account a power of attorney, in a form approved by the Council of the New Zealand Law Society, authorising him or her or them jointly or severally to exercise and perform in the donor’s name, during the periods specified in clause 7, the powers and duties specified in clause 9.

(2)

Before a power of attorney is given under subclause (1), the written consent of the intended donee must be obtained.

(3)

A power of attorney given before the date of the commencement of this clause under section 70 of the Law Practitioners Act 1982 by a solicitor practising on his or her own account without partners must, if it is in force at that date and otherwise conforms to the provisions of this clause and of clauses 6 to 9 (other than those of clause 7(c)), be deemed—

(a)

to have been duly given under subclause (1) of this clause; and

(b)

to extend and apply in respect of the periods specified in clause 7 and the powers and duties specified in clause 9.

Compare: 1982 No 123 s 70(1), (5), (7)

3 Appointment of person or persons to act as board of incorporated law firm

(1)

Every lawyer to whom this schedule applies by virtue of section 44(1)(b) must, within 3 months after the date on which he or she becomes the only director of an incorporated law firm, give to some other barrister and solicitor or barristers and solicitors entitled to practise on his or her or their own account a power of attorney, in a form approved by the Council of the New Zealand Law Society, authorising him or her or them to exercise and perform, during the periods specified in clause 8, the powers and duties specified in clause 10.

(2)

Before a power of attorney is given under subclause (1), the written consent of the intended donee must be obtained.

4 Appointment of agent to conduct sole practice of conveyancing practitioner

(1)

Every conveyancing practitioner to whom this schedule applies by virtue of section 44(1)(c) must, within 3 months after the date of the commencement of this clause or, as the case may require, the date of his or her commencing to be in practice in the way described in section 44(1)(c), give to some other conveyancing practitioner or conveyancing practitioners entitled to practise on his or her or their own account a power of attorney, in a form approved by the Council of the New Zealand Society of Conveyancers, authorising him or her or them jointly or severally to exercise and perform in the donor’s name, during the periods specified in clause 7, the powers and duties specified in clause 9.

(2)

Before a power of attorney is given under subclause (1), the written consent of the intended donee must be obtained.

5 Appointment of person or persons to act as board of incorporated conveyancing firm

(1)

Every conveyancing practitioner to whom this schedule applies by virtue of section 44(1)(d) must, within 3 months after the date on which he or she becomes the only director of an incorporated conveyancing firm, give to some other conveyancing practitioner or conveyancing practitioners entitled to practise on his or her or their own account a power of attorney, in a form approved by the Council of the New Zealand Society of Conveyancers, authorising him or her or them to exercise and perform, during the periods specified in clause 8, the powers and duties specified in clause 10.

(2)

Before a power of attorney is given under subsection (1), the written consent of the intended donee must be obtained.

6 Appointment of alternates

(1)

A power of attorney given under clause 2(1) or clause 3(1) must also appoint a barrister and solicitor or barristers and solicitors entitled to practise on his, her, or their own account as an alternate or alternates, who must exercise the powers and duties of the donee in any case where the donee is for the time being unable or unwilling to act.

(2)

A power of attorney given under clause 4(1) or clause 5(1) must also appoint a conveyancing practitioner or conveyancing practitioners entitled to practise on his, her, or their own account as an alternate or alternates, who must exercise the powers and duties of the donee in any case where the donee is for the time being unable or unwilling to act.

Compare: 1982 No 123 s 70(2)

7 Periods for which power of attorney under clause 2(1) or clause 4(1) are given

The periods for which the power of attorney (referred to in clause 2(1) or clause 4(1)) must be given are—

(a)

any current or future period or periods during which the donor is wholly or partially incapacitated and unable, by reason of his or her mental or physical condition, to conduct his or her practice; and

(b)

any current or future period or periods during which the donor is absent from his or her practice; and

(ba)

any current or future period or periods during which the donor is an undischarged bankrupt; and

(c)

any current or future period or periods during which the donor is prohibited by an order of the Disciplinary Tribunal from practising on his or her own account; and

(d)

the period from the date of the donor’s death until his or her administrator (within the meaning of the Administration Act 1969) either lawfully disposes of the practice or revokes the power of attorney; and

(e)

if the donor, being a lawyer, is suspended from practice, then, subject to the consent of the Council of the New Zealand Law Society being obtained at that time to the operation of the power of attorney, any period during which he or she is so suspended; and

(f)

if the donor, being a conveyancing practitioner, is suspended from practice, then, subject to the consent of the Council of the New Zealand Society of Conveyancers being obtained at that time to the operation of the power of attorney, any period during which he or she is so suspended; and

(g)

if the donor, being a lawyer, has his or her name struck off the roll, then, subject to the consent of the Council of the New Zealand Law Society being obtained at that time to the operation of the power of attorney, the period from the date on which the name is so struck off until the practice is lawfully disposed of; and

(h)

if the donor, being a conveyancing practitioner, has his or her registration cancelled, then, subject to the consent of the Council of the New Zealand Society of Conveyancers being obtained at that time to the operation of the power of attorney, the period from the date on which the registration is cancelled until the practice is lawfully disposed of.

Compare: 1982 No 123 s 70(3)

Schedule 1 clause 7(ba): inserted, on 20 November 2012, by section 9(1) of the Lawyers and Conveyancers Amendment Act 2012 (2012 No 92).

8 Periods for which power of attorney under clause 3(1) or clause 5(1) are given

The periods for which the power of attorney (referred to in clause 3(1) or clause 5(1)) must be given are—

(a)

any current or future period or periods during which the donor is wholly or partially incapacitated and unable, by reason of his or her mental or physical condition, to be actively involved in the provision of regulated services by an incorporated firm of which the donor is the only director; and

(b)

any current or future period or periods during which the donor is, by reason of his or her absence, unable to be actively involved in the provision of regulated services by an incorporated firm of which the donor is the only director; and

(c)

any current or future period or periods during which the donor is prohibited by an order of the Disciplinary Tribunal from practising on his or her own account; and

(d)

the period from the date of the donor’s death until his or her administrator (within the meaning of the Administration Act 1969) either lawfully disposes of the donor’s shares in the incorporated firm or revokes the power of attorney; and

(e)

if the donor, being a lawyer, is suspended from practice, then, subject to the consent of the Council of the New Zealand Law Society being obtained at that time to the operation of the power of attorney, any period during which he or she is so suspended; and

(f)

if the donor, being a conveyancing practitioner, is suspended from practice, then, subject to the consent of the Council of the New Zealand Society of Conveyancers being obtained at that time to the operation of the power of attorney, any period during which he or she is so suspended; and

(g)

if the donor, being a lawyer, has his or her name struck off the roll, then, subject to the consent of the Council of the New Zealand Law Society being obtained at that time to the operation of the power of attorney, the period from the date on which the name is so struck off until the donor’s shares in the incorporated firm are lawfully disposed of; and

(h)

if the donor, being a conveyancing practitioner, has his or her registration cancelled, then, subject to the consent of the Council of the New Zealand Society of Conveyancers being obtained at that time to the operation of the power of attorney, the period from the date on which the registration is cancelled until the donor’s shares in the incorporated firm are lawfully disposed of.

9 Powers and duties under power of attorney given by sole practitioner

(1)

The powers and duties authorised to be exercised and performed by the donee of a power of attorney referred to in clause 2(1) or clause 4(1) are—

(a)

to conduct the donor’s practice; and

(b)

to operate the donor’s trust account or accounts; and

(c)

if the case is one to which clause 7(g) or clause 7(h) applies, to dispose of the donor’s practice; and

(d)

to do all things necessary for, or incidental to, the exercise of those powers—

in accordance with, and subject to, this Act and all rules and regulations made under this Act.

(2)

This clause is subject to clause 21.

Compare: 1982 No 123 s 70(4)

10 Powers and duties under power of attorney given by only director of incorporated firm

(1)

The powers and duties authorised to be exercised and performed by the donee of a power of attorney referred to in clause 3(1) or clause 5(1) are—

(a)

to act as the board of the incorporated firm; and

(b)

to become actively involved in the provision by the incorporated firm of regulated services; and

(c)

to perform the duties of the donor in respect of the incorporated firm’s trust account or accounts; and

(d)

if the case is one to which clause 8(g) or clause 8(h) applies, to dispose of the donor’s shares in the incorporated firm; and

(e)

to do all things necessary for, or incidental to, the exercise of those powers—

in accordance with, and subject to, this Act and all rules and regulations made under this Act.

(2)

This clause is subject to clause 21.

Compare: 1982 No 123 s 70(4)

11 Expenses and remuneration of donee

All costs, charges, and expenses incurred by the donee of a power of attorney referred to in clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1), or an alternate of such a donee, in the exercise of the donee’s powers under the power of attorney (including such reasonable remuneration as may be approved by the Council of the appropriate society) are payable, unless the High Court otherwise directs, out of the property of the practitioner or incorporated firm by whom or on whose behalf the power of attorney was given.

12 Powers of New Zealand Law Society and New Zealand Society of Conveyancers

If a practitioner to whom this schedule applies fails or refuses to give a power of attorney within the time and in the manner prescribed in respect of that practitioner by clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1), or if during any period specified in clause 7 or clause 8 (as the case may require) the donee of a power of attorney in force under clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1) is not exercising or performing his or her powers or duties under it to the satisfaction of the Council of the appropriate society, the President of that society may, of his or her own motion or pursuant to a resolution of the Council of that society, execute on behalf of the practitioner a power of attorney in accordance with clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1), as the case may require; and any such power of attorney has effect as if it had been given by the practitioner under clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1), as the case may require.

Compare: 1982 No 123 s 70(6)

13 Power to revoke power of attorney

(1)

A power of attorney given under clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1) may, at any time, be revoked—

(a)

by the donor; or

(b)

by the President of the Council of the appropriate society.

(2)

A power of attorney may be revoked under subclause (1)(b) only if, in relation to the donee under the power of attorney, incapacity, bankruptcy, neglect of duty, or misconduct, is proved to the satisfaction of the President of the Council of the appropriate society.

(3)

This clause is subject to clause 14.

14 Restrictions on revocation of power of attorney

While the donor continues to be a practitioner to whom this schedule applies, neither the donor nor the President of the appropriate society may revoke the power of attorney unless, at the time of revocation, the donor or the President gives a power of attorney to the same or any other practitioner or practitioners in accordance with clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1).

Compare: 1982 No 123 s 70(8)

15 Termination of powers of donee

The powers of the donee of any power of attorney given under clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1) terminate—

(a)

if the power of attorney is revoked under this Act; or

(b)

if the donee is released under clause 22(2),—

but do not terminate by reason only of the death of the donor or the donor becoming of unsound mind.

Compare: 1982 No 123 s 70(9)

16 Restriction on exercise of powers of donee

The powers of the donee of any power of attorney given under clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1) may not be exercised after the expiration of 1 year from the date of the grant in New Zealand of administration in the estate of the donor, except during such further period or periods as may be approved by the Council of the appropriate society.

Compare: 1982 No 123 s 70(10)

17 Certain matters not affected

Nothing in this Act prevents—

(a)

the lawful disposal of—

(i)

the practice of the donor; or

(ii)

the practice of the incorporated firm; or

(iii)

the shares of the donor in the incorporated firm; or

(b)

the grant by a lawyer or conveyancing practitioner of a power of attorney otherwise than under this Act.

Compare: 1982 No 123 s 70(11)

18 Property Law Act 2007 and Companies Act 1993 overridden

Clauses 2 to 17 apply despite anything to the contrary in the Property Law Act 2007 or the Companies Act 1993 or any rule of law.

Compare: 1982 No 123 s 70(12)

Schedule 1 clause 18 heading: amended, on 1 January 2008, by section 364(1) of the Property Law Act 2007 (2007 No 91).

Schedule 1 clause 18: amended, on 1 January 2008, by section 364(1) of the Property Law Act 2007 (2007 No 91).

19 Powers of manager or administrator of estate of mentally disordered or deceased practitioner

(1)

While under the Protection of Personal and Property Rights Act 1988 there is a manager of the estate of the donor, the manager may, at any time, and from time to time, suspend the powers of the donee of a power of attorney, and may, at any time, revoke any such suspension.

(2)

Any such manager may, at any time, with the prior consent of the Council of the appropriate society, and subject to the provisions of this Act applicable to the donor, revoke any power of attorney and give to any other practitioner or practitioners entitled to practise on his, her, or their own account a power of attorney for the same purposes and for the same period as the donor was required to do.

(3)

The administrator (within the meaning of the Administration Act 1969) of the estate of a deceased donor may, with the prior consent of the Council of the appropriate society, and subject to the provisions of this Act applicable to the donor, revoke a power of attorney and give to any other practitioner or practitioners entitled to practise on his, her, or their own account a power of attorney for the same purposes as the donor was required to do and for the balance remaining of the period specified in clause 7(d) or clause 8(d), as the case may be.

(4)

Clauses 2 to 18 and 20 to 25, so far as they are applicable and with all necessary modifications, apply to a power of attorney given under this clause as if it were given by the practitioner to whose practice the power of attorney relates or by the practitioner who is the only director of the incorporated firm to which the power of attorney relates.

Compare: 1982 No 123 s 71

20 Notice of giving of power of attorney

Whenever a power of attorney is given in respect of the practice of any practitioner to whom this schedule applies or in respect of any incorporated firm of which a practitioner to whom this schedule applies is the only director, the person giving it must forthwith give notice of the fact that it has been given, the date of it, and the name and business address of the donee, to the chief executive of the appropriate society.

Compare: 1982 No 123 s 72

21 Conditions affecting donee of power of attorney

(1)

This section applies whenever a power of attorney is given under clause 2(1) or clause 3(1) or clause 4(1) or clause 5(1) or clause 19 in respect of the practice of any practitioner or in respect of any incorporated firm of which a practitioner to whom this schedule applies is the only director.

(2)

The donee must not begin to act under the power of attorney until he or she has—

(a)

produced it for the inspection of the chief executive of the appropriate society; and

(b)

given a certified copy of it to the chief executive of the appropriate society; and

(c)

given notice of it to any auditor of the practitioner’s or incorporated firm’s trust account and to the bank where the trust account is kept.

(3)

All rules and regulations for the time being in force relating to practitioners’ trust accounts and their audit apply and are required to be observed in the name and on behalf of the practitioner as if he or she were personally conducting his or her practice.

(4)

All rules and regulations for the time being in force relating to incorporated firms’ trust accounts and their audit apply and are required to be observed in the name and on behalf of the incorporated firm as if the donor of the power of attorney were personally acting as the board of the incorporated firm.

22 Termination of agency

(1)

If a power of attorney is revoked or suspended, or if for any reason the donee of a power of attorney ceases to act under it, written notice of that fact must forthwith be given, to the chief executive of the appropriate society, by—

(a)

the donor if he or she is capable of doing so; and

(b)

the donee if he or she is capable of doing so; and

(c)

any other person who revokes or suspends the power of attorney.

(2)

If the donee of any power of attorney ceases to act under it while he or she is capable of so acting, he or she must continue to observe and comply with the requirements of the Council of the appropriate society, and is personally responsible for the observance of this Act and of all rules and regulations made under this Act, until the power of attorney is revoked or suspended or the donee is released by resolution passed by the Council of the appropriate society.

(3)

When the Council of the appropriate society passes any such resolution, its chief executive must forthwith give notice of it to—

(a)

any auditor of the practitioner’s or incorporated firm’s trust account; and

(b)

the bank where the trust account is kept.

(4)

No such release may be given by the Council of the appropriate society until it is satisfied by such proof as it requires that it is proper in all the circumstances to do so.

(5)

A power of attorney given by a practitioner to whom this schedule applies by virtue of section 44(1)(a) or section 44(1)(c) is revoked by operation of law when the practitioner to whose practice it relates commences practice in partnership with any other practitioner or practitioners.

Compare: 1982 No 123 s 74

23 Bank to notify closing of trust account

Where—

(a)

under clause 21(2)(c) the donee of a power of attorney has given notice of it to any bank in which a practitioner’s or incorporated firm’s trust account is kept; and

(b)

that notice has not been followed by a notice under clause 22(3)(b) of the release of the donee; and

(c)

the bank is requested to close any such trust account, or any such account is closed,—

the bank must forthwith notify the chief executive of the appropriate society of the request or closure.

Compare: 1982 No 123 s 75

24 Agent to be authorised to appoint substitute

(1)

A power of attorney must include provision authorising the donee of the power of attorney to appoint a substitute.

(2)

Clauses 2 to 18 and 21 to 23 and 25 apply to a substitute appointed under such a provision as if he or she had been appointed as donee by the original power of attorney.

Compare: 1982 No 123 s 76

25 Practising certificates, etc

(1)

A donee acting under a power of attorney must, out of the funds of the donor available to the donee, pay all practising fees, all contributions and levies to the Lawyers’ Fidelity Fund or the Conveyancing Practitioners’ Fidelity Fund, and all other amounts for which the donor would, as a lawyer or conveyancing practitioner, have been liable under this Act if he or she had continued to practise as a lawyer or conveyancing practitioner.

(2)

While the donor is alive, the donee of the power of attorney must apply for and obtain in each year the practising certificate of—

(a)

the practitioner to whose practice the power of attorney relates; or

(b)

the practitioner who is the only director of the incorporated firm to which the power of attorney relates.

(3)

The chief executive of the appropriate society is empowered, subject to this Act, to issue such a certificate with the approval of the Council of the appropriate society.

(4)

No practising certificate may be issued in respect of a practitioner who has died; but, while the practising fees, contributions, levies, and amounts for which he or she would have been liable are being paid in respect of a practitioner who has died, this Act and all rules and regulations made under this Act apply in respect of that practitioner as if he or she were living and the holder of a current practising certificate.

Compare: 1982 No 123 s 77

26 Part 7 not affected

Nothing in clauses 2 to 25 or in section 45 in any way affects the operation of Part 7.

Compare: 1982 No 123 s 79