Trustee Act 1898

Subject to this section, where there are more trustees than one, any of those trustees who resides, or is about to reside, permanently out of this State and who is not expressly forbidden to do so by the instrument creating the trust may, notwithstanding any rule of law or equity to the contrary, delegate to any person resident in this State the execution or exercise of all or any of the trusts, powers, authorities, and discretions vested in him as trustee.

Subject to this section, a trustee who is temporarily out of, or is about to depart temporarily from, this State and who is not expressly forbidden to do so by the instrument creating the trust may, notwithstanding any rule of law or equity to the contrary, delegate to any person resident in this State the execution or exercise of all or any of the trusts, powers, authorities, and discretions vested in him as trustee, whether alone or jointly with any other person or persons.

A delegation under this section shall be by power of attorney executed as a deed.

The power to delegate conferred by subsection (2) shall not be exercised in favour of a person who is the only other co-trustee unless that person is The Public Trustee or a trustee company.

Notwithstanding the power to delegate conferred by this section, a trustee may not exercise that power unless his co-trustee or co-trustees (if any) and such other person as is empowered to appoint trustees by the instrument (if any) creating the trust, consent by the same or another deed to the delegation.

Where a delegation by a trustee under this section has been duly made to, and accepted by, a person and is for the time being in operation, that person has, within the scope of the delegation, the same trusts, powers, authorities, discretions, liabilities, and responsibilities (except the power of delegation conferred by this section) as he would have if he were then the trustee.

The donor of a power of attorney under this section is liable for the acts and defaults of the donee as if they were his own acts and defaults, and the donee is subject to the jurisdiction and powers of any court so far as respects the execution of the trust delegated to him in the same manner as if he were the trustee.

Subject to the Powers of Attorney Act 2000, a power of attorney given under this section– if the donor is out of this State when he executes it, comes into operation forthwith after its receipt in this State; or if the donor is in this State when he executes it, comes into operation when he leaves this State.

A power of attorney under this section that authorizes the donee to act for the donor while he is temporarily out of this State ceases to operate on the donor's return to this State.

Notwithstanding that a power of attorney under this section – has never come into operation; has ceased to operate; or has been revoked by the act of the donor of the power or his death or by operation of law – any act done or instrument executed by the donee of the power is as valid and effectual in favour of a person dealing with the donee as if the power had come into operation and remained in operation or been unrevoked at the time when the act was done or the instrument was executed, unless that person had, at that time, actual notice that the power had never come into operation, had ceased to operate, or had been revoked.

Notwithstanding that the donor of a power of attorney under this section has not obtained the consent or consents required by subsection (5), any act done, or instrument executed, by the donee of the power is as valid and effectual in favour of a person dealing with the donee as if that consent or those consents had been properly obtained, unless that person had, at the time when the act was done or the instrument was executed, actual notice that the consent or consents had not been obtained.

A statutory declaration by the donee of a power of attorney under this section relating to any trust or estate that – the power has come into operation; or in any transaction the donee is acting in the execution of the trust, or the administration of the estate, to which the power relates – is, in favour of a person dealing with the donee of the power, conclusive evidence of that fact.

The fact that it appears from a power of attorney under this section, or from any evidence required for the purposes of such a power of attorney or otherwise, that in any transaction the donee of the power is acting in the execution of a trust does not affect with notice of the trust a person dealing in good faith with the donee.

Where it is intended that the donee of a power of attorney under this section shall be entitled to transfer, or otherwise deal with, land to which the Land Titles Act 1980 applies, the power shall be in the form, and executed and attested in the manner, prescribed by that Act.

Nothing in this section limits or affects – the power of appointment of a new trustee in the place of a trustee who is absent from this State; or the power of the court to make any order by reason of that absence.

In this section, trustee includes a tenant for life.