Instruments (Enduring Powers of Attorney) Act 2003 (Vic)

Instruments (Enduring Powers of Attorney) Act

2003

ts	Act No. 75/2003
n
e
m
u	TABLE OF PROVISIONS
c

o Section Page

1. Purpose 1

D	2.	Commencement	1
ry	3.	Amendment of Part XI of the Instruments Act 1958	2
4.	New Part XIA inserted in the Instruments Act 1958	2
ta	PART XIA—ENDURING POWERS OF ATTORNEY	2
n
e	Division 1—Introductory	2
m	114.	Interpretation	2

ia Division 2—Making an Enduring Power of Attorney 4

rl	115.	What is an enduring power of attorney?	4
a	116.	Recognition of enduring powers made in other States
P	and Territories	4
117.	When is the attorney's power exercisable?	4
d	118.	When does a donor have capacity to make an enduring
n	power of attorney?	5
a	119.	Appointment of one or more attorneys	6
n	120.	Appointment of alternative attorney	7
o	121.	Can a person who is insolvent be an attorney?	7
ti	122.	Attorney can be head of religious order	7
la	123.	What are the formal requirements for making an
enduring power of attorney?	8
is	124.	Who can sign for the donor?	8
g	125.	Who can be a witness?	9
e	125A.	What must the witnesses certify?	9
L	125B.	Signature and undertaking of attorney required	10
125C.	Enduring power of attorney to be a deed	11
n

a Division 3—Role of Attorney 11

ri	125D.	Requirement to keep records	11
to	125E.	Powers of attorney to execute instruments etc.	11
ic
V

i

Section Page

Division 4—How is an Enduring Power of Attorney

Revoked?	12
Subdivision 1—Introductory	12

ts	125H.	Division not to affect revocation under other laws	12
n

e Subdivision 2—Revocation by Donor 13

m	125I.	Revocation in writing	13
u	125J.	Revocation by later enduring power of attorney	13

c	125K. Death	13
o	Subdivision 3—Revocation According to Terms	14

D 125L. According to terms 14

ry Subdivision 4—Revocation by Attorney 14

ta 125M. Resignation 14

n 125N. Legal incapacity 14

e 125O. Revocation if attorney becomes insolvent 14

125P. Death 15

m

ia Subdivision 5—Revocation by Tribunal 15

rl 125Q. Revocation by Tribunal 15

a	Subdivision 6—Effect of Revocation if More than One
P	Attorney 15
d	125R. Effect of revocation if more than one attorney 15
n
a	Division 5—Protection from Liability 15
n	125S. Definitions 15
125T. Protection if Court or Tribunal has given advice or
o

ti direction or recommendation 16

125U. Protection for attorney and third persons who are

la	unaware of invalidity	17
is	Division 6—Jurisdiction of Tribunal	17
g
e	Subdivision 1—General Powers of Tribunal	17

L	125V.	Application to Tribunal	17
125W.	Who is entitled to notice?	18
n	125X.	General power of revocation of Tribunal	19
a
ri	125Y.	Declaration of invalidity	20
125Z.	Further powers of Tribunal	20

to	125ZA. Advisory opinions	21
ic
V

ii

Section Page

Subdivision 2—Rehearings	21
125ZC. Application for rehearing	21
125ZD. Parties and notice	22

ts	125ZE. Rehearing	23
n	125ZF. Effect of first instance order pending rehearing	23
e	Division 7—General	24
m	Subdivision 1—Proof of Enduring Power of Attorney	24
u
c	125ZG. Proof of enduring power of attorney	24
o	125ZH. Who may certify the copy?	24

125ZI. Proof by certified copy of certified copy 25

D 125ZJ. Other forms of proof not affected 25

ry	125ZK. References to enduring powers of attorney	25
ta	Subdivision 2—Approval of Forms	26
n	125ZL. Approved forms	26
e	Subdivision 3—Regulations	26
m	125ZM. Regulations	26
ia
rl	Division 8—Transitional	26
a	125ZN. Saving for existing enduring powers of attorney	26
P	125ZO. Existing powers of attorney from other jurisdictions	27
125ZP. Continuation of provisions relating to protected persons	27

d	5.	Schedule 13 repealed	28
n	6.	New clause 40F in Part 12 of Schedule 1 to the Victorian
a	Civil and Administrative Tribunal Act 1998	28

40F. Constitution of Tribunal for proceedings 28

n	7.	Amendment of Part 12 of Schedule 1 to the Victorian Civil
o
ti	and Administrative Tribunal Act 1998 29
8.	Amendment of Guardianship and Administration Act 1986 29

la ═══════════════

is	ENDNOTES	30
g
e
L
n
a
ri
to
ic
V

iii

ts
n
e
m
u

c
o	Victoria
D
ry
ta
n	No. 75 of 2003
e
m
ia
rl	Instruments (Enduring Powers of
a	Attorney) Act 2003†
P

[Assented to 21 October 2003]

d
n
a
n
o

ti	The Parliament of Victoria enacts as follows:
la
is	1. Purpose
g
e	The main purpose of this Act is to amend the
L	Instruments Act 1958 to revise the laws relating
n	to enduring powers of attorney.
a
ri	2. Commencement
to	(1) Subject to sub-section (2), this Act comes into
ic	operation on a day to be proclaimed.
V	(2) If this Act does not come into operation before

1 July 2004, it comes into operation on that day.

Instruments (Enduring Powers of Attorney) Act 2003

s. 3

Act No. 75/2003

3. Amendment of Part XI of the Instruments Act 1958

See:
Act No.
6279/1958. (1) In section 104 of the Instruments Act 1958 the

ts	Reprint No. 10	definitions of "enduring power of attorney" and
as at
n	1 January	"Public Trustee" are repealed.
e	2003. LawToday:	(2) After section 105(2) of the Instruments Act 1958
m

dpc.vic.	insert—
u	gov.au
c	"(3) Except as expressly provided in Part XIA,
o	this Part does not apply to enduring powers
D	of attorney.".
ry	(3) Sections 114 to 118 of the Instruments Act 1958
ta	are repealed.
n	4. New Part XIA inserted in the Instruments Act 1958
e	After Part XI of the Instruments Act 1958
m	insert—
ia
rl	'PART XIA—ENDURING POWERS OF
a	ATTORNEY
P
d	Division 1—Introductory
n
a	114. Interpretation
n	(1) In this Part—
o
ti	"approved form" means a form approved
la	by the Secretary under section 125ZL;
is	"donor" means a person who makes an
g	enduring power of attorney;
e
L	"enduring power of attorney" means a power of attorney referred to in
n
a	section 115;
ri
to
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

"insolvent" means insolvent under administration as that expression is

ts	defined in the Corporations Act;
n	"Public Advocate" means the person
e	appointed as the Public Advocate under
m	the Guardianship and
u	Administration Act 1986;
c	"relative" means—
o
D	(a) spouse or domestic partner (within the meaning of the Guardianship
ry	and Administration Act 1986);
ta	or
n	(b) son or daughter; or
e
(c) mother or father; or
m
ia	(d) brother, sister, half-brother, half-
rl	sister, adoptive brother, adoptive
a	sister, step-brother or step-sister;
P	or
d	(e) grandfather or grandmother; or
n
a	(f) grandson or granddaughter; or
n	(g) uncle or aunt; or
o
ti	(h) nephew or niece;
la	"Secretary" means Secretary to the
is	Department of Justice;
g
e	"Tribunal" means the Victorian Civil and
L	Administrative Tribunal established by the Victorian Civil and
n
a	Administrative Tribunal Act 1998.
ri
to
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

Division 2—Making an Enduring Power of

Attorney

ts	115. What is an enduring power of attorney?
n
e	(1) By an enduring power of attorney, an adult person ("donor") may—
m
u	(a) authorise one or more persons
c	("attorneys") to do anything on behalf
o	of the donor that the donor can lawfully
D	authorise an attorney to do; and
ry	(b) provide conditions and limitations on,
ta	and instructions about, the exercise of
n	the power.
e	(2) Despite any rule of law to the contrary, an
m	enduring power of attorney is not revoked by
ia	the subsequent legal incapacity of the donor
rl	of the power.
a	116. Recognition of enduring powers made in other States and Territories
P
d
n	If an enduring power of attorney is made in
a	another State or Territory and complies with
n	the requirements of that other State or
o	Territory, then, to the extent the powers it
ti	gives could validly have been given by an
la	enduring power of attorney made under this
is	Part, the enduring power of attorney is to be
g	taken to be an enduring power of attorney
e	made under, and in compliance with, this
L	Part.
n	117. When is the attorney's power exercisable?
a
ri	(1) A donor may specify in an enduring power
to	of attorney a time from which, circumstance
in which, or occasion on which, a power is
ic	exercisable.
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(2) If the enduring power of attorney does not specify a time from which, circumstance in which, or occasion on which, a power

ts	becomes exercisable, the power becomes
n	exercisable once the enduring power of
e	attorney is made.
m
u	118. When does a donor have capacity to make
c	an enduring power of attorney?
o	(1) A donor may make an enduring power of
D	attorney only if the donor understands the
ry	nature and effect of the enduring power of
ta	attorney.
n	(2) Understanding the nature and effect of the
e	enduring power of attorney includes
m	understanding the following matters—
ia	(a) that the donor may, in the power of
rl	attorney, specify conditions or
a	limitations on, or instructions about, the
P	exercise of the power to be given to the
d	attorney;
n
a	(b) when the power is exercisable;
n	(c) that once the power is exercisable, the
o	attorney has the same powers as the
ti	donor had (when not under a legal
la	incapacity) to do anything for which the
is	power is given subject to any
g	limitations or restrictions on exercising
e	the power included in the enduring
L	power of attorney;
n	(d) that the donor may revoke the enduring power of attorney at any time the donor is capable of making an enduring power
a
ri
to	of attorney;
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(e) that the power the attorney is given continues even if the donor subsequently ceases to have legal

ts	capacity;
n
e	(f) that at any time that the donor is not
m	capable of revoking the enduring power
u	of attorney, the donor is unable to
c	effectively oversee the use of the
o	power.

D	Note:	It is advisable for the witness to make a written
ry	record of the evidence as a result of which the witness considers that the donor understands
ta	these matters.

n	119. Appointment of one or more attorneys
e

(1) A donor may in an enduring power of

m

attorney appoint—

ia
rl

(a) a single attorney; or

a	(b) 2 or more joint attorneys, or
P
(c) 2 or more joint and several attorneys.
d
n	(2) If 2 or more joint attorneys are appointed, all
a	the attorneys can act only if they all agree
n	and any documents must be signed by all of
o
ti	them.
la	(3) If 2 or more joint and several attorneys are
is	appointed—
g	(a) all the attorneys can act together if they
e	all agree and any documents can be
L	signed by all of them; or
n	(b) any of the attorneys can act and sign
a
ri	documents together or alone.
to	(4) An attorney must be at least 18 years old.
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

120. Appointment of alternative attorney

(1) A donor may in an enduring power of

ts	attorney appoint an adult person as an
n	alternative attorney for a person appointed as
e	attorney.
m	(2) An alternative attorney may act as attorney
u	under the enduring power of attorney only in
c	the event of the death or during the period of
o	the absence or legal incapacity of the
D	attorney for whom the alternative attorney is
ry	appointed.
ta	121. Can a person who is insolvent be an
n	attorney?
e	A person is not eligible to be appointed as an
m	attorney under an enduring power of attorney
ia
rl	if the person is insolvent.
a	122. Attorney can be head of religious order
P	(1) A person who is a member of a religious
d	order may appoint the person who is the
n	holder of the position of Victorian head of
a	that order or the head of a local chapter of
n	that order in Victoria as the attorney under
o
ti	an enduring power of attorney.
la	(2) If an attorney is appointed under an enduring

power of attorney in accordance with sub-

is	section (1), the person who is from time to
g	time the holder of the position of Victorian
e	head of the religious order or head of the
L	relevant chapter of the order is deemed to be
n	the attorney appointed under that enduring
a
ri	power of attorney.
to
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

123.  What are the formal requirements for making an enduring power of attorney?

ts	(1) An enduring power of attorney must be in
n	the approved form.
e	Note:  An approved form is a form approved by the
m	Secretary to the Department of Justice under
u	section 125ZL.
c	(2) An enduring power of attorney must be
o	signed—
D

(a) by the donor of the power; or

ry	(b) by direction, and in the presence, of the
ta	donor of the power, by an eligible
n	person.
e

(3) The power of attorney must be signed and

m

ia	dated by 2 adult witnesses in the presence of
rl	the donor and each other.
a	(4) The witnesses must be in accordance with
P	section 125.
d	(5) The enduring power of attorney must contain
n	a certificate signed by each witness in
a	accordance with section 125A.
n
o	124. Who can sign for the donor?
ti	A person is eligible to sign an enduring
la	power of attorney for the donor if the
is	person—
g	(a) is at least 18 years old; and
e
L	(b) is not a witness for the enduring power
n	of attorney; and
a

ri	(c)	is not an attorney for the donor or a person nominated as an attorney in the
to	enduring power of attorney.
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

125. Who can be a witness?

(1) A person cannot be a witness to an enduring

ts	power of attorney if the person is—
n	(a) the donor of the power; or
e
(b) the person appointed as attorney.
m
u	(2) Only one of the witnesses can be a relative of
c	the donor of the power or of the person
o	appointed as attorney.
D

(3) One of the witnesses must be a person

ry	authorised by law to witness the signing of a
ta	statutory declaration.
n	125A. What must the witnesses certify?
e

(1) If an enduring power of attorney is signed by

m

ia	the donor, it must include a certificate signed
rl	by each witness stating that—
a	(a) the donor signed the enduring power of
P	attorney freely and voluntarily in the
d	presence of the witness; and
n	(b) at the time, the donor appeared to the
a	witness to have the capacity necessary
n	to make the enduring power of
o
ti	attorney.
la	(2) If an enduring power of attorney is signed by
is	a person for the donor, it must include a
g	certificate signed by each witness stating
e	that—
L	(a) the donor of the power directed the
n	person to sign the enduring power of
a
ri	attorney for the donor; and
to	(b) the donor of the power gave that

direction freely and voluntarily in the

ic	presence of the witness; and
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(c) the person signed it in the presence of the donor and the witness; and

ts	(d)	at the time, the donor appeared to the
n	witness to have the capacity necessary
e	to make the enduring power of
m	attorney.

u	125B. Signature and undertaking of attorney
c	required
o
D	(1) An enduring power of attorney is effective in relation to an attorney only if the attorney
ry	has accepted the appointment in accordance
ta	with this section.
n	(2) The attorney must sign and date a statement
e	of acceptance.
m
ia	(3) The statement of acceptance must be in the
rl	approved form.
a	Note:  An approved form is a form approved by the
P	Secretary to the Department of Justice under section 125ZL.
d
n	(4) The statement of acceptance must be
a	endorsed on or attached to the enduring
n	power of attorney.
o
ti	(5) The statement of acceptance must include an undertaking by the person accepting
la	appointment as attorney—
is	(a) to exercise the powers conferred by the
g
e	enduring power of attorney with
L	reasonable diligence to protect the
n	interests of the donor; and
a
ri	(b) to avoid acting where there is any

conflict of interest between the interests

to	of the donor and the attorney's interests;
ic	and
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(c) to exercise the powers conferred by the enduring power of attorney in

ts	accordance with this Part.
n	125C. Enduring power of attorney to be a deed
e	An enduring power of attorney that complies
m	with this Division is to be taken to be and
u	have effect as a deed, even if it is not
c	expressed to be executed under seal.
o
D	Division 3—Role of Attorney
ry	125D. Requirement to keep records
ta
n	An attorney under an enduring power of
e	attorney must keep and preserve accurate
m	records and accounts of all dealings and
ia
rl
transactions made under the power.

125E. Powers of attorney to execute instruments

a	etc.
P	(1) The attorney under an enduring power of
d	attorney may, if the attorney thinks fit—
n
a	(a) execute any instrument with the
n	attorney's own signature, and, where
o	sealing is required or employed, with
ti	the attorney's own seal; and
la	(b) do any other thing in the attorney's own
is	name.
g	(2) An instrument executed by the attorney
e
L	under an enduring power of attorney must be executed in such a way as to show that the
n
a	attorney does so as attorney for the donor of
ri	the power.
to	(3) An instrument executed or thing done in the
ic	way specified in this section is as effective as
V	if executed or done by the donor—

(a) with the donor's signature; or

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(b) with the donor's signature and seal; or

(c) in the donor's name.

ts	125F. Role of attorney where guardian
n	appointed
e

(1) An enduring power of attorney does not

m

u	authorise the attorney to make a decision
c	about the medical treatment of the donor of
o	the power.
D	(2) If a decision made by a guardian or enduring
ry	guardian within the meaning of the
ta	Guardianship and Administration Act
1986 in the exercise of a power as guardian
n	or enduring guardian conflicts with a
e	decision made by an attorney under an
m	enduring power of attorney, the decision of
ia
rl	the guardian or enduring guardian prevails.
a	125G. Role of attorney where administrator
P	appointed
d	If the Tribunal makes an administration
n	order under the Guardianship and
a	Administration Act 1986 in respect of the
n	person who is the donor of an enduring
o	power of attorney, the attorney may exercise
ti	power under the enduring power of attorney
la	only to the extent authorised by the Tribunal.
is	Division 4—How is an Enduring Power of
g
e	Attorney Revoked?
L
n	Subdivision 1—Introductory
a
ri	125H. Division not to affect revocation under
to	other laws
ic	(1) This Division does not limit the events by
V	which or the circumstances in which an enduring power of attorney—

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(a) is revoked whether orally or in writing or in another way; or

ts	(b)	is terminated by implication or
n	operation of law.

e	(2) Without limiting sub-section (1), an enduring
m	power of attorney may be revoked in any
u	way that a power of attorney may be
c	revoked.
o
D	Subdivision 2—Revocation by Donor
ry	125I. Revocation in writing
ta	The donor of an enduring power of attorney
n
e	may revoke the enduring power of attorney
m	in writing in the approved form.
ia	Note 1:  An approved form is a form approved by the
rl	Secretary to the Department of Justice under section 125ZL.
a

P	Note 2:	This is not the only way a power of attorney can be revoked in writing. See section 125H.
d

n	125J. Revocation by later enduring power of
a	attorney
n	A donor's enduring power of attorney is
o
ti	revoked, to the extent of any inconsistency, by a later enduring power of attorney of the
la	donor.
is	125K. Death
g
e	An enduring power of attorney is revoked
L	when the donor dies.
n
a
ri
to
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

Subdivision 3—Revocation According to Terms

125L. According to terms

ts

n	An enduring power of attorney is revoked
e	according to its terms.
m	Example
u	If an enduring power of attorney is expressed to
c	operate for or during a specified period, it is revoked
o	at the end of that period.
D
ry	Subdivision 4—Revocation by Attorney
ta	125M. Resignation
n	(1) An attorney may resign as attorney by signed
e	notice given to the donor.
m
ia	(2) Despite sub-section (1), if a donor ceases to
rl	have legal capacity, an attorney under an
a	enduring power of attorney may only resign
P	as attorney with the leave of a court or the Tribunal.
d
n	(3) If an attorney under an enduring power of
a	attorney resigns, the power of attorney is
n	revoked to the extent that it confers power on
o
ti	the attorney.
la	125N. Legal incapacity
is	If an attorney under an enduring power of
g	attorney ceases to have legal capacity, the
e	power of attorney is revoked to the extent
L	that it confers power on the attorney.
n	125O. Revocation if attorney becomes insolvent
a
ri	If an attorney under an enduring power of
to	attorney becomes insolvent, the power of attorney is revoked to the extent that it
ic	confers power on the attorney.
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

125P. Death

If an attorney under an enduring power of

ts	attorney dies, the power of attorney is
n	revoked to the extent that it confers power on
e	the attorney.
m
u	Subdivision 5—Revocation by Tribunal
c
o	125Q. Revocation by Tribunal
D	An enduring power of attorney may be
ry	revoked by the Tribunal under Division 6.
ta	Subdivision 6—Effect of Revocation if More
n	than One Attorney
e
m	125R. Effect of revocation if more than one
ia	attorney
rl	(1) If 2 or more persons are appointed jointly
a	and severally as attorneys under an enduring
P	power of attorney, the revocation of the
d	power in relation to one attorney does not
n	affect the appointment or powers of the
a	remaining attorneys.
n	(2) If 2 or more persons are appointed jointly
o
ti	(but not jointly and severally) as attorneys
la	under an enduring power of attorney, the
is	revocation of the power in relation to one joint attorney also revokes the power in
g
e	relation to each of the other joint attorneys.
L
Division 5—Protection from Liability
n
a
ri	125S. Definitions
to	In this Division—
ic	"invalidity", in relation to a power under an
V	enduring power of attorney, includes invalidity because—

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(a) the power is not exercisable at the time when, circumstance in which, or occasion on which it is

ts	purportedly exercised; or
n
e	(b) the enduring power of attorney
m	has been declared to be invalid by
u	a court or the Tribunal; or
c	(c) the enduring power of attorney
o	has been revoked; or
D

(d) the enduring power of attorney

ry	was made in another State or
ta	Territory and does not comply
n	with the requirements of that other
e	State or Territory;
m	"know" in relation to the invalidity of a
ia
rl	power, includes—
a	(a) know of the happening of an event
P	(such as the death of the donor) that invalidates the power; or
d
n	(b) have reason to believe the power
a	is invalid.
n	125T. Protection if Court or Tribunal has given
o
ti	advice or direction or recommendation
la	An attorney under an enduring power of
is	attorney who acts in compliance with the
g	advice, directions or recommendations of—
e	(a) the Supreme Court in relation to the
L	enduring power of attorney; or
n
a	(b) the Tribunal under this Part—
ri	is deemed to have complied with this Part
to	unless the attorney knowingly gave the Court
ic	or the Tribunal false or misleading
V	information relevant to the advice, directions

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

or recommendations of the Court or the

Tribunal.

ts	125U. Protection for attorney and third persons
n	who are unaware of invalidity
e	(1) An attorney who, in good faith and without
m	knowing a power under the enduring power
u	of attorney is invalid, purports to exercise the
c	power, is entitled as against the donor and
o	any other person, to rely on the power
D	despite the invalidity.
ry	(2) A person (and any person claiming under
ta	that person) who, in good faith and without
n	knowing a power under an enduring power
e	of attorney is invalid, acts in reliance on the
m	purported exercise of the power by an
ia	attorney, is entitled as against the donor and
rl	any other person to rely on the power despite
a	the invalidity.
P
Division 6—Jurisdiction of Tribunal
d
n
a	Subdivision 1—General Powers of Tribunal
n
o
ti

125V. Application to Tribunal

(1) An application may be made to the Tribunal

la	for a declaration, order, direction or
is	recommendation about—
g	(a) any matter or question relating to—
e

L	(i)	the scope of an attorney's powers
n	under an enduring power of
a
ri	attorney; or

(ii) the exercise of any power by an

to	attorney under an enduring power
ic	of attorney; or
V	(b) any other thing in or related to this Part.

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(2) An application may be made by—

(a) the Public Advocate; or

ts	(b) the donor of the enduring power of
n	attorney; or
e

(c) an attorney under the enduring power

m

u	of attorney; or
c	(d) another person whom the Tribunal is
o	satisfied has a special interest in the
D	affairs of the donor.
ry	125W. Who is entitled to notice?
ta	(1) Notice must be given under this section of—
n
e	(a) an application to the Tribunal under this
m	Subdivision;
ia	(b) the hearing of the application;
rl	(c) any hearing of the Tribunal under this
a	Subdivision in relation to an enduring
P	power of attorney;
d
n	(d) any order made by the Tribunal in
a	respect of the application or an
n	enduring power of attorney.
o
ti	(2) The persons entitled to notice are—
la	(a) the Public Advocate;
is	(b) the donor of the enduring power of
g	attorney;
e	(c) any attorney under the enduring power
L	of attorney;
n
a	(d) any person specified in sub-section (3)
ri	to whom the Tribunal directs that notice
to	is to be given.
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(3) The Tribunal may direct that notice is to be

given to—

ts	(a) the nearest relative of the donor;
n	(b) the primary carer (if any) of the donor;
e
(c) any guardian of the donor;
m
u	(d) any person appointed as alternative
c	guardian of the donor under the
o	Guardianship and Administration
D	Act 1986;
ry	(e) any administrator of the estate of the
ta	donor;
n	(f) any person who has a special interest in
e	the affairs of the donor.
m
ia	(4) In this section "administrator",
rl	"guardian", "nearest relative" and
a	"primary carer" have the same meanings
P	as they have in the Guardianship and Administration Act 1986.
d
n	125X. General power of revocation of Tribunal
a	(1) The Tribunal, on its own initiative or on an
n	application under section 125V, may revoke
o
ti	the appointment of an attorney under an
enduring power of attorney if the Tribunal is
la	satisfied that it is in the best interests of the
is	donor to do so.
g
e	(2) Before making a decision under sub-section
L	(1), the Tribunal must be satisfied that the
n	donor lacks the capacity to make an enduring
a	power of attorney.
ri
to
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

125Y. Declaration of invalidity

(1) The Tribunal, on its own initiative or on an

ts	application under section 125V, may declare
n	an enduring power of attorney to be invalid
e	if it is satisfied that—
m	(a) the donor lacked capacity at the time
u	the enduring power of attorney was
c	made; or
o
D	(b) the enduring power of attorney does not comply with the requirements of this
ry	Part; or
ta	(c) the enduring power of attorney is
n	invalid for another reason, for example,
e	the donor was induced to make it by
m	dishonesty or undue influence.
ia
rl	(2) If the Tribunal declares an enduring power of
a	attorney invalid, the power is void from the
P	start.
d	125Z. Further powers of Tribunal
n	(1) The Tribunal, on its own initiative or on an application under section 125V, may—
a
n
o	(a) make a declaration or make
ti	recommendations or give any directions
la	it considers necessary in relation to an
is	enduring power of attorney;
g	(b) vary the effect of an enduring power of
e	attorney;
L

(c) suspend for a specified period an

n

a	enduring power of attorney, either
ri	generally or in respect of a specific
to	matter;

ic	(d)	make any order it considers necessary
V	in relation to an enduring power of attorney.

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(2) Without limiting sub-section (1), the

Tribunal, on its own initiative, may give directions to an attorney under an enduring

ts	power of attorney in respect of any matter.
n
e	125ZA. Advisory opinions
m	The Tribunal may give an advisory opinion
u	on any matter relating to an enduring power
c	of attorney that is referred to it by a person
o	referred to in section 125V(2).
D

125ZB. Records and audit

ry

ta (1) In the case of an enduring power of attorney,

the Tribunal may make an order that—

n

e	(a)	the attorney lodges with the Tribunal,
m	accounts or other documents relating to
ia	the exercise of the power for a specified
rl	period; or

a	(b) the accounts be examined or audited by
P	a person appointed by the Tribunal and
d	that a copy of the person's report be
n	given to the Tribunal and the applicant.
a

(2) The Tribunal may make the order on its own

n	initiative or on the application of the donor
o
ti	or the Public Advocate or another interested
la	person.
is	(3) The Tribunal may make an order about
g	payment to a person appointed under sub-
e	section (1) of the costs of the examination or
L	audit of accounts.
n
a
ri

Subdivision 2—Rehearings

to	125ZC. Application for rehearing
ic	(1) If the Tribunal makes an order in respect of

an application under Subdivision 1 (other

V than an order suspending an enduring power

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

of attorney), a party or a person entitled to notice of the application may apply to the

ts	Tribunal for a rehearing of the application.
n	(2) A person entitled to notice of the application
e	who was not, or did not become, a party may
m	apply for a rehearing only if the Tribunal
u	gives leave.
c	(3) Sub-section (2) does not apply to the Public
o	Advocate.
D

(4) An application for a rehearing, or for leave to

ry	apply for a rehearing, must be made within
ta	28 days after the day of the order.
n	(5) If the Tribunal gives oral reasons for making
e	an order and a party then requests written
m	reasons under section 117 of the Victorian
ia	Civil and Administrative Tribunal Act
rl	1998, the day on which the written reasons
a	are given to the party is deemed to be the day
P	of the order for the purposes of sub-
d	section (4).
n
a	(6) A person cannot apply for a rehearing of an application if—
n
o	(a) the order was made by the Tribunal
ti	constituted by the President, whether
la	with or without others; or
is	(b) the application was for a rehearing or
g	for leave to apply for a rehearing.
e
L	125ZD. Parties and notice
n	(1) A party to the proceeding on an application
a
ri	under Subdivision 1 is a party to a rehearing
of the application under this Subdivision, in
to	addition to any other parties.
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(2) A person who was entitled to notice of the

making of an application under
Subdivision 1 is entitled to notice of an

ts	application for a rehearing of the application
n	under this Subdivision.
e

125ZE. Rehearing

m

u	(1) On an application under section 125ZC, the
c	Tribunal must rehear the matter and, for that
o	purpose, the Tribunal has all the functions
D	and powers that the Tribunal had with
ry	respect to the matter at first instance.
ta	(2) In determining a rehearing, the Tribunal
n	may—
e	(a) affirm the order of the Tribunal at first
m	instance; or
ia

rl	(b)	vary the order of the Tribunal at first
a	instance; or
P	(c)	set aside the order of the Tribunal at
d	first instance and make another order in
n	substitution for it.
a

125ZF. Effect of first instance order pending

n	rehearing
o
ti	(1) Subject to sub-section (2), the making of an
la	application for a rehearing does not affect the
is	operation of any order to which the
g	application relates or prevent the taking of
e	action to enforce the order.
L	(2) The Tribunal may make an order staying the
n	operation of an order pending the
a
ri	determination of the rehearing of the
application to which the order relates.
to
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

Division 7—General

ts	Subdivision 1—Proof of Enduring Power of
n	Attorney
e

125ZG. Proof of enduring power of attorney

m

u	(1) An enduring power of attorney may be
c	proved by a copy of the enduring power of
o	attorney certified in accordance with this
D	section and section 125ZH.
ry	(2) Each page, other than the last page, of the
ta	copy must be certified to the effect that the
n	copy is a true and complete copy of the
e	corresponding page of the original.
m	(3) The last page of the copy must be certified to
ia	the effect that the copy is a true and complete
rl	copy of the original.
a	125ZH. Who may certify the copy?
P

(1) Certification of a copy of an enduring power

d

n	of attorney must be by one of the following
a	persons—
n	(a) a justice of the peace;
o
ti	(b) a legal practitioner;
la	(c) a public notary;
is	(d) any officer authorised by law to
g	administer an oath;
e
L	(e) a financial services licensee;
n	(f) a regulated principal;
a
ri	(g) a person of a prescribed class.
to
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

(2) In this section—

"financial services licensee" means a

ts	financial services licensee (as defined
n	in section 761A of the Corporations
e	Act) whose licence covers dealing in
m	securities;
u	"regulated principal" means a regulated
c	principal (as defined in section 1430 of
o	the Corporations Act) who is authorised
D	by Subdivision D of Division 1 of
ry	Part 10.2 of that Act to deal in
ta	securities.
n	125ZI. Proof by certified copy of certified copy
e	(1) If a copy of an enduring power of attorney
m	has been certified in accordance with
ia	sections 125ZG and 125ZH, the enduring
rl	power of attorney may also be proved by a
a	copy, certified in accordance with those
P	sections, of the certified copy.
d	(2) For the purposes of sub-section (1),
n
a	references in section 125ZG to the original power of attorney are to be taken to be
n
o	references to the certified copy from which
ti	the further copy is made.
la	125ZJ. Other forms of proof not affected
is	This Division does not prevent an enduring
g	power of attorney being proved in any other
e
L	way.
n	125ZK. References to enduring powers of attorney
a
ri	In this Part a reference to an enduring power
of attorney includes a reference to a copy of
to	the enduring power of attorney that complies
ic	with the requirements of this Division.
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

Subdivision 2—Approval of Forms

125ZL. Approved forms

ts	(1) The Secretary may approve forms for use
n
e	under this Part.
m	(2) The Secretary must publish in the
u	Government Gazette any form approved
c	under this Part.
o
D	(3) If a document is required under this Part to be in the approved form, it is sufficient if the
ry	document is to the like effect of the approved
ta	form.
n
e	Subdivision 3—Regulations
m	125ZM. Regulations
ia
rl	The Governor in Council may make
a	regulations for or with respect to any matter
P	or thing that is authorised or required to be
d	prescribed or necessary to be prescribed for
n	the purposes of this Part.
a

Division 8—Transitional

n
o

ti	125ZN. Saving for existing enduring powers of
la	attorney
is	An enduring power of attorney under Part XI
g	existing immediately before the
e	commencement of the Instruments
L	(Enduring Powers of Attorney) Act 2003
n	has effect on and after that commencement
a	as if the enduring power of attorney had been
ri	made under Division 2 of this Part.
to
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 4

Act No. 75/2003

125ZO. Existing powers of attorney from other

jurisdictions

ts	Section 116 applies to an enduring power of
n	attorney whether made before or after the
e	commencement of the Instruments
m	(Enduring Powers of Attorney) Act 2003.
u	125ZP. Continuation of provisions relating to
c	protected persons
o
D	(1) If—

ry	(a)	the donor of an enduring power of
ta	attorney was a protected person
immediately before the commencement
n	of the Instruments (Enduring Powers
e	of Attorney) Act 2003; and
m

ia	(b) the enduring power of attorney was in
rl	force immediately before that
a	commencement—
P	the enduring power of attorney continues in
d	force until it is revoked and the powers and
n	duties of State Trustees under the State
a	Trustees (State Owned Company) Act
n	1994 in relation to the estates of protected
o	persons do not apply in relation to the estate
ti	of the donor so long as the enduring power
la	of attorney is effective.
is	(2) Despite sub-section (1), until State Trustees
g	has notice of an enduring power of attorney,
e	any action taken by State Trustees under the
L	State Trustees (State Owned Company)
n	Act 1994 in respect of the protected person
a
ri	is valid and effectual.
to	(3) In this section "protected person" and
ic	"State Trustees" have the same meanings
as they have in the State Trustees (State
V	Owned Company) Act 1994.'.

Instruments (Enduring Powers of Attorney) Act 2003

s. 5

Act No. 75/2003

5. Schedule 13 repealed

Schedule 13 to the Instruments Act 1958 is

ts	repealed.
n	See:

6. New clause 40F in Part 12 of Schedule 1 to the

e	Act No.
53/1998. Victorian Civil and Administrative Tribunal Act
m	Reprint No. 3

1998

as at

u	1 July 2003
c	and In Part 12 of Schedule 1 to the Victorian Civil
o	amending
Act Nos

and Administrative Tribunal Act 1998, before

D	18/2003 and	clause 41 insert—
30/2003.

ry	"40F. Constitution of Tribunal for proceedings
LawToday:

ta	dpc.vic.	The Tribunal is to be constituted for the
gov.au
n	purposes of a rehearing under Subdivision 2
e	of Division 6 of Part XIA of the
m	Instruments Act 1958 by—

ia	(a) a senior member or presidential
rl	member, if the order at first instance
a	was made by the Tribunal constituted
P	by an ordinary member;
d	(b) a presidential member, if the order at
n
a	first instance was made by the Tribunal constituted by a senior member;
n
o	(c) a judicial member, if the order at first
ti	instance was made by the Tribunal
la	constituted by a Deputy President;
is	(d) a Vice President, if the order at first
g	instance was made by the Tribunal
e	constituted by more than one member
L	(except where one or more of the
n	members was a Vice President);
a

ri	(e)	the President, if the order at first
to	instance was made by the Tribunal
constituted by a Vice President
ic	(whether with or without others).".
V

Instruments (Enduring Powers of Attorney) Act 2003

s. 7

Act No. 75/2003

7. Amendment of Part 12 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act

ts	1998
n	In clauses 41, 42(1), 43 and 44(1) of Schedule 1 to
e	the Victorian Civil and Administrative
m	Tribunal Act 1998 for "section 118" (wherever
u	occurring) substitute "Division 6 of Part XIA".
c	See:

8. Amendment of Guardianship and Administration

o Act No.

Act 1986 58/1986.

D Reprint No. 6

Section 86(2) of the Guardianship and as at

ry 1 January

Administration Act 1986 is repealed. 2003

ta	LawToday:
n	dpc.vic.
e	gov.au
m	═══════════════
ia
rl
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
V

Instruments (Enduring Powers of Attorney) Act 2003

Endnotes

Act No. 75/2003

ENDNOTES

ts †

Minister's second reading speech—

n	Legislative Assembly: 28 August 2003
e
Legislative Council: 14 October 2003
m
u	The long title for the Bill for this Act was "to amend the Instruments Act
c	1958 to revise the laws relating to enduring powers of attorney and for
o	other purposes."
D
ry
ta
n
e
m
ia
rl
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
V