Powers of Attorney Act 2014 (Vic)

Version No. 007

Powers of Attorney Act 2014

No. 57 of 2014

Version incorporating amendments as at

26 April 2021

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4Meaning of decision making capacity

5Assessing decision making capacity

5ARemote witnessing procedure

5BWhich document is the power of attorney or other document?

5CRecording of remote witnessing procedure

5DRemote witnessing procedure does not limit other duties and obligations

Part 2—Non-enduring Powers of Attorney

Division 1—Definitions

6Definitions

Division 2—Scope and making of general non-enduring powers of attorney

7General non-enduring power of attorney

8Appointment of more than one attorney

9Appointment of alternative attorneys

10When attorney's power is exercisable

Division 3—Execution of non-enduring power of attorney and execution of other documents under non-enduring power of attorney

11How should a non-enduring power of attorney be executed?

12Power of an attorney to execute instruments

Division 4—Protection from liability

13Interpretation

14Protection for an attorney who does not know of revocation or invalidity

15Protection for a third person who does not know of revocation or invalidity when dealing with attorney

Division 5—Proof of non-enduring power of attorney

16Proof of non-enduring power of attorney

Division 6—Powers of attorney for security

17Definition

18Operation of powers of attorney for security

19Revocation of powers of attorney for security

20Protection for a person who does not know of revocation of a power of attorney for security

Part 3—Enduring powers of attorney—scope, making and related issues

Division 1—Principles

21Principles to be applied by persons acting under this Act or an enduring power of attorney

Division 2—Scope of power

22Enduring power of attorney

23Who may make an enduring power of attorney?

24Conditions and instructions in an enduring power of attorney

25Attorney not able to delegate power

26Matters for which power cannot be given under an enduring power of attorney

27Power of an attorney to execute instruments

Division 3—Appointment of attorney

28Who is eligible to be appointed as an attorney?

29Attorney may be occupant of position

30Appointment of more than one attorney

31Appointment of alternative attorneys

Division 4—Making the power

32Form of enduring power of attorney

33How should an enduring power of attorney be executed?

34Who is eligible to sign an enduring power of attorney at the direction of the principal?

35Who can witness the signing of an instrument creating an enduring power of attorney?

36Certification of witness to signing

37Acceptance by attorney

38Acceptance by alternative attorney

Part 4—Enduring powers of attorney—Commencement

39When attorney's power is exercisable

40Attorney to notify if acting because the principal does not have decision making capacity

41Regaining decision making capacity does not prevent exercise of power by attorney

42Principal may continue to exercise power

Part 5—Enduring powers of attorney—Ending

Division 1—Provision in enduring power of attorney as to revocation

43Terms of enduring power of attorney as to revocation

Division 2—Revocation by principal

44Revocation by principal

45Form of revocation

46How should an instrument of revocation be executed?

47Who is eligible to sign the instrument of revocation at the direction of the principal?

48Who can witness the signing of the instrument of revocation?

49Certification of witness to signing of instrument of revocation

50Notification of revocation

Division 3—Other revocation

51Death of principal

52Death of attorney

53Attorney does not have decision making capacity

54Revocation of appointment and notification of revocation, winding up etc.

55Revocation by later enduring power of attorney

Division 4—Resignation of attorney or alternative attorney when principal has decision making capacity

56Resignation when principal has decision making capacity

57Form of resignation

58Notification of resignation

Division 5—Resignation of attorney or alternative attorney when principal does not have decision making capacity

59Resignation when principal does not have decision making capacity

60Form of resignation

61Notification of resignation

Division 6—Effect of attorney's power ending where more than one attorney

62Ending of attorney's power where more than one attorney

Part 6—Enduring powers of attorney—Operation

Division 1—Duties of attorney

63Duties of attorney

64Conflict transactions

65Permitted conflict transactions

66Keeping records

67Gifts

68Maintenance of principal's dependants

69Separation of attorney's and principal's property

70Remuneration of attorney

Division 2—Decision making between more than one attorney

71Disagreement between attorneys

72Attorney for financial matters to implement decision

Division 3—Protection and relief from liability

73Interpretation

74Relief from personal liability

75Protection for attorney, third person who does not know of invalidity or revocation or breach of condition

76Protection if acting on advice, direction or order of Court or VCAT

Division 4—Compensation

77Compensation for acts of attorney

78Who can apply for an order for compensation?

79Time limit for application for order for compensation

80VCAT may refer matter to Supreme Court

Division 5—General matters

81Enduring power of attorney is a deed

82Proof of enduring power of attorney

83Effect of administration order or guardianship order on enduring power of attorney

83AInterest of principal in property not to be altered by sale or other disposition of property

83BException to ademption applies regardless of testamentary capacity

Part 7—Supportive attorney appointments

Division 1—Definitions

84Definitions

Division 2—Power to make appointment and nature of appointment

85Power to make and scope of appointment

86Who may make a supportive attorney appointment?

87Information power

88Communication power

89Powers as to giving effect to decisions

90Duties and obligations of supportive attorney

Division 3—Appointment of supportive attorneys

91Who is eligible to be appointed as a supportive attorney?

92Appointment of more than one supportive attorney

93Appointment of alternative supportive attorneys

Division 4—Making an appointment

94Form of appointment

95How should an appointment be executed?

96Who is eligible to sign an appointment form at the direction of the principal?

97Who can witness the signing of an appointment form?

98Certification of witness to signing of appointment form

99Acceptance by supportive attorney

100Acceptance by alternative supportive attorney

Division 5—Commencement and ending of supportive attorney appointment

101When does appointment commence?

102Effect on appointment if principal does not have decision making capacity

103Revocation of appointment by principal

104Form of revocation

105How should a form of revocation be executed?

106Who is eligible to sign the form of revocation at the direction of the principal?

107Who can witness the signing of the form of revocation?

108Notification of revocation by principal

109Other revocation of supportive attorney appointment

110Notification of revocation by operation of section 109(4)

111Resignation

112Form of resignation

113Notification of resignation

Division 6—Protection and relief from liability

114Protection for supportive attorney or other person who does not know appointment does not have effect

Part 8—VCAT jurisdiction

Division 1—Interpretation

115Interpretation

Division 2—VCAT hearing at first instance

116Matters about which VCAT may make an order

117Considerations for failure to comply with execution requirements

118Considerations for invalidity of enduring power of attorney

119Effect of finding of invalidity on enduring power of attorney

120Nature of VCAT orders

121Advisory opinions

Division 3—Application and procedure, VCAT hearing at first instance

122Who can apply for an order?

123Who is entitled to notice?

124Who are parties to the proceeding?

Division 4—VCAT rehearing

125Requirement to rehear

126Matter that cannot be subject of a rehearing

127Powers of VCAT on rehearing

128Effect of, stay of first instance order pending rehearing

129Nature of rehearing

Division 5—Application and procedure, VCAT rehearing

130Who can apply for a rehearing?

131Who is entitled to notice of rehearing?

132Who are parties to the proceeding for the rehearing?

133Time limit for making application

Division 6—Effect on VCAT Act

134Effect on VCAT Act

Division 7—Powers of VCAT with respect to wills

134AVCAT may open will

134BVCAT may compel production of will

134CVCAT may make copy of will available to attorney

Part 9—General

135Offences as to enduring powers of attorney

136Offences of dishonestly obtaining or using supportive attorney appointment

137Criminal liability of officers of bodies corporate—failure to exercise due diligence

138Recognition of enduring powers of attorney made in other States and Territories

139Regulations

Part 10—Savings and transitional provisions

Division 1—Transitional provisions

140Definitions

141Transitional provision—non-enduring powers of attorney

142Transitional provision—old enduring powers of attorney

143Transitional provision—old enduring powers of guardianship

Division 2—Amendment of the Instruments Act 1958 and the Guardianship and Administration Act 1986

144Amendment of the Instruments Act 1958

145Repeal of Division 5A of Part 4 of the Guardianship and Administration Act 1986

146Repeal of sections 86 and 86A of the Guardianship and Administration Act 1986

147Repeal of Schedule 4 to the Guardianship and Administration Act 1986

148Amendment of the Guardianship and Administration Act 1986

Division 3—Powers of Attorney Amendment Act 2016

149Definition

150Interpretation of Legislation Act 1984 not limited

151Enduring power of attorney (2014)

152Old enduring power of attorney

153Old enduring power of guardianship

154Applications for VCAT rehearing

Division 4—Transitional—Medical Treatment Planning and Decisions Act 2016

155Saving—effect of broader definition of personal matter

156Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021

Schedule

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Endnotes

1      General information

2      Table of Amendments

3      Amendments Not in Operation

4      Explanatory details

Version No. 007

Powers of Attorney Act 2014

No. 57 of 2014

Version incorporating amendments as at

26 April 2021

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The purposes of this Act are to—

(a)consolidate and provide for certain aspects of the law relating to powers of attorney, including the following—

(i)the principles to be applied by persons acting under enduring powers of attorney or under the provisions of this Act relating to enduring powers of attorney; and

(ii)the powers and duties of attorneys under enduring powers of attorney; and

(iii)the protection of persons whose affairs are being dealt with under enduring powers of attorney; and

(b)to provide for the meaning of the capacity of persons to make decisions for matters to which enduring powers of attorney and supportive attorney appointments relate; and

(c)to provide for the appointment of a supportive attorney as one who supports the person making the appointment to make and give effect to the person's own decisions; and

(d)to repeal Parts XI and XIA of the Instruments Act 1958 and Division 5A of Part 4 of the Guardianship and Administration Act 1986; and

(e)to make related amendments to the Instruments Act 1958, the Guardianship and Administration Act 1986 and other Acts; and

(f)to provide for related matters.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 September 2015, it comes into operation on that day.

3Definitions

(1)In this Act—

accommodation provider, for an individual, means a person who is, in a professional or administrative capacity, directly or indirectly responsible for or involved in the provision of accommodation to the individual;

administration order has the same meaning as in the Guardianship and Administration Act 2019;

attorney for financial matters, for an enduring power of attorney, means an attorney who has power for financial matters under that enduring power of attorney;

attorney for personal matters, for an enduring power of attorney, means an attorney who has power for personal matters under that enduring power of attorney;

care worker, for an individual, means a person who performs services for the care of the individual and receives remuneration for those services from any source, but does not include—

(a)a person who receives a carer payment or other benefit from the Commonwealth or a State or a Territory of the Commonwealth for providing home care for the individual; or

(b)a person who is a health provider;

close friend, for a person, means another person who has a close personal relationship with the first person and a personal interest in the first person's welfare;

domestic partner of a person means—

(a)a person who is in a registered relationship with the person; or

(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i)for fee or reward; or

(ii)on behalf of another person or an organisation (including a government, a government agency, a body corporate or a charitable or benevolent organisation);

enduring power of attorney means a power of attorney to which section 22 applies;

financial matter, in relation to a principal under an enduring power of attorney, or a supportive attorney appointment, means any matter relating to the principal's financial or property affairs, and includes any legal matter that relates to the financial or property affairs of the principal;

Examples

The following are examples of financial matters—

(a)making money available to the principal for the principal's personal expenditure;

(b)paying expenses for the principal and any dependants of the principal relating to the maintenance and accommodation of the principal and any dependants, including purchasing an interest in, or making a contribution to an establishment to accommodate the principal or any dependants of the principal or otherwise making payments in relation to such property;

(c)paying any debts of the principal, including any fees and expenses to which an attorney is legally entitled;

(d)receiving and recovering money payable to the principal;

(e)carrying on any trade or business of the principal;

(f)performing any contracts entered into by the principal;

(g)discharging any mortgage over the principal's property;

(h)paying rates, taxes and insurance premiums or other outgoings for the principal's property;

(i)insuring the principal or the principal's property;

(j)otherwise preserving or improving the principal's property;

(k)making investments for the principal;

(l)continuing investments of the principal, including taking up rights to issues of new shares, or options for new shares to which the principal becomes entitled by the principal's existing shareholding;

(m)undertaking any real estate transaction for the principal;

(n)dealing with land for the principal;

(o)undertaking a beneficial transaction for the principal involving the use of the principal's property as security for an obligation, including taking out a loan on behalf of the principal or giving a guarantee on behalf of the principal;

(p)withdrawing money from or depositing money into an account of the principal with a financial institution;

financial services licensee has the same meaning as in section 761A of the Corporations Act;

general non-enduring power of attorney means a non-enduring power of attorney that is made under section 7;

guardianship order has the same meaning as in the Guardianship and Administration Act 2019;

health provider means a person who provides health care in the practice of a profession or in the ordinary course of business;

legal matter, in relation to a principal under an enduring power of attorney, or a supportive attorney appointment, means—

(a)use of legal services for the principal's benefit; or

(b)bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the principal, including settling a claim before or after a legal proceeding or hearing starts;

Examples

The following are examples of legal matters—

(a)the use of legal services to obtain information about the principal's legal rights;

(b)the use of legal services to make a transaction;

medical treatment has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016;

medical research procedure has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016;

nearest relative means the relative first listed in the definition of relative who has attained the age of 18 years, the elder or eldest of two or more relatives described in any paragraph being preferred to any other so described, regardless of sex;

non-enduring power of attorney means a power of attorney that is not an enduring power of attorney;

offence involving dishonesty means an offence that involves dishonesty and that is punishable by at least 3 months' imprisonment, whether it is an offence in this State, the Commonwealth, another State or a Territory of the Commonwealth or a foreign state or country;

personal matter, in relation to a principal under an enduring power of attorney, or a supportive attorney appointment, means any matter relating to the principal's personal or lifestyle affairs, and includes any legal matter that relates to the principal's personal or lifestyle affairs, but does not include any matter that relates to medical treatment or medical research procedures;

Examples

The following are examples of personal matters—

(a)where and with whom the principal lives;

(b)persons with whom the principal associates;

(c)whether the principal works and, if so, the kind and place of work and employer;

(d)whether the principal undertakes education or training, the kind of education or training and the place where it takes place;

(e)daily living issues such as diet and dress.

*                *                *                *                *

Note

See the Medical Treatment Planning and Decisions Act 2016 for matters relating to medical treatment and medical research procedures.

principal means—

(a)for a power of attorney, the person who makes the power of attorney;

(b)for a supportive attorney appointment, the person who makes the supportive attorney appointment;

Public Advocate has the same meaning as in the Guardianship and Administration Act 2019;

purchaser means a purchaser for valuable consideration and includes a lessee, mortgagee or other person who acquires an estate or interest in property for valuable consideration;

relative means any of the following—

(a)spouse or domestic partner;

(b)child;

(c)parent or step-parent;

(d)sibling or step-sibling;

(e)grandparent;

(f)grandchild;

(g)uncle or aunt;

(h)nephew or niece;

remote witnessing procedure means the procedure set out in section 5A;

special witness means—

(a)an Australian legal practitioner; or

(b)a justice of the peace appointed under section 7 of the Honorary Justices Act 2014; or

(c)a person who is a member of a prescribed class of person;

spouse of a person means a person to whom the person is married;

supportive attorney means a person appointed under a supportive attorney appointment;

supportive attorney appointment means an appointment under section 85;

supportive attorney for financial matters, for a supportive attorney appointment, means a supportive attorney who has power for financial matters under the supportive attorney appointment;

trustee company has the same meaning as in section 4 of the Trustee Companies Act 1984;

valuable consideration does not include a nominal consideration in money.

(2)For the purposes of the definition of domestic partner in subsection (1)—

(a)registered relationship has the same meaning as in the Relationships Act 2008; and

(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of the relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c)a person is not a domestic partner of another person merely because they are co-tenants.

(3)A reference in the definition of relative in subsection (1) to a person's sibling includes a reference to an individual who was adopted by one or both of the person's parents.

(4)In this Act, a reference to signing at the direction of the principal, in relation to the signing of—

(a)an enduring power of attorney, is a reference to signing the instrument in the presence of and at the direction of the principal under section 33(a)(ii); or

(b)a revocation of an enduring power of attorney, is a reference to signing the instrument in the presence of and at the direction of the principal under section 46(a)(ii); or

(c)a supportive attorney appointment, is a reference to signing the form in the presence of and at the direction of the principal under section 95(a)(ii); or

(d)a revocation of a supportive attorney appointment, is a reference to signing the form in the presence of and at the direction of the principal under section 105(a)(ii).

4Meaning of decision making capacity

(1)For the purpose of this Act, other than Part 2, a person has capacity to make a decision as to a matter (decision making capacity) if the person is able to—

(a)understand the information relevant to the decision and the effect of the decision; and

(b)retain that information to the extent necessary to make the decision; and

(c)use or weigh that information as part of the process of making the decision; and

(d)communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

(2)For the purpose of subsection (1), a person is presumed to have decision making capacity unless there is evidence to the contrary.

(3)For the purpose of subsection (1)(a), a person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.

(4)In determining whether or not a person has decision making capacity regard should be had to the following—

(a)a person may have decision making capacity for some matters and not others;

(b)if a person does not have decision making capacity for a matter, it may be temporary and not permanent;

(c)it should not be assumed that a person does not have decision making capacity for a matter on the basis of the person's appearance;

(d)it should not be assumed that a person does not have decision making capacity for a matter merely because the person makes a decision that is, in the opinion of others, unwise;

(e)a person has decision making capacity for a matter if it is possible for the person to make a decision in the matter with practicable and appropriate support.

Example

The following are examples of practicable and appropriate support—

(a)using information or formats tailored to the particular needs of a person; or

(b)communicating or assisting a person to communicate his or her decision; or

(c)giving a person additional time and discussing the matter with the person; or

(d)using technology that alleviates the effects of a person's disability.

(5)Despite subsection (4)(d), the fact that a person has made or proposes to make a decision that has a high risk of being seriously injurious to the person's health or wellbeing may, in conjunction with other factors, be evidence that the person is unable to understand, use or weigh information relevant to the decision or the effect of the decision.

5Assessing decision making capacity

A person who is assessing whether a person has decision making capacity, must take reasonable steps to conduct the assessment at a time and in an environment in which the person's decision making capacity can be assessed most accurately.

5ARemote witnessing procedure

(1)A power of attorney or other document under this Act that is required to be executed with a witness may be executed in accordance with the remote witnessing procedure set out in this section.

(2)One of the witnesses must be a special witness and, if more than one witness qualifies as a special witness, only one of the special witnesses is to be the special witness if the document being executed is—

(a)an enduring power of attorney under section 33; or

(b)an instrument of revocation under section 46; or

(c)a supportive attorney appointment under section 95; or

(d)a form of revocation under section 105.

(3)All elements of the remote witnessing procedure must be carried out on the same day and within Victoria.

(4)The principal must either—

(a)sign the power of attorney or other document with any required witnesses clearly seeing that signature being made by audio visual link or a combination of physical presence and audio visual link; or

(b)if permitted, direct another person (the substitute signatory) to sign the power of attorney or other document with any required witnesses clearly seeing and hearing the direction of the principal to the substitute signatory and all witnesses and the principal clearly seeing the substitute signatory's signature being made on behalf of the principal by audio visual link or a combination of physical presence and audio visual link.

(5)Subject to subsection (6), any witness who is physically present with the principal then signs the power of attorney or other document in accordance with the requirements for witnesses under this Act.

(6)If a special witness is required, that witness must sign the document last regardless of whether the special witness is physically present.

(7)In addition to any other requirements under this Act, the power of attorney or other document is then transmitted by electronic communication to any witness attending by audio visual link who must—

(a)be reasonably satisfied that the document which the witness is to sign is the same document that the principal (or the substitute signatory on behalf of the principal) signed; and

(b)certify on the power of attorney or other document a statement that the witness witnessed the power of attorney or other document by audio visual link in accordance with the remote witnessing procedure; and

(c)sign and date the power of attorney or other document in the presence by audio visual link of the principal and other witnesses; and

(d)if the witness is the special witness, in addition to complying with paragraphs (a) to (c), the special witness must check the power of attorney or other document for compliance with the remote witnessing procedure and certify on the power of attorney or other document—

(i)that the power of attorney or other document was signed and witnessed in accordance with the remote witnessing procedure; and

(ii)that the person making the certification is a special witness and what type of special witness the person is; and

(iii)whether an audio visual recording was made of the signing or witnessing of the power of attorney or other document by the remote witnessing procedure.

(8)For the purposes of subsections (4), (5) and (7), principal includes an attorney under section 37, an alternative attorney under section 38, a supportive attorney under section 99 and an alternative supportive attorney under section 100.

5BWhich document is the power of attorney or other document?

(1)If a power of attorney or other document is executed in accordance with the remote witnessing procedure and requires a special witness, the document which has been certified by the special witness in accordance with section 5A(7) is the valid power of attorney or other document.

(2)If a power of attorney or other document is executed in accordance with the remote witnessing procedure and does not require a special witness, the document which contains the principal's signature (or the signature of the substitute signatory on behalf of the principal) and all the witness signatures is the valid power of attorney or other document.

(3)The place of execution of a power of attorney or other document executed or signed in accordance with the remote witnessing procedure is the place where the principal is located at the time the power of attorney or other document is executed or signed.

(4)Counterpart documents do not constitute a valid power of attorney or other document.

5CRecording of remote witnessing procedure

(1)An audio visual recording of the execution or signing of a power of attorney or other document by remote witnessing procedure may be made only if all of the parties to the procedure consent to a recording being made.

(2)The making of a recording or the failure to make a recording referred to in subsection (1) does not affect the validity of the power of attorney or other document executed or signed by the remote witnessing procedure or the use of that procedure.

5DRemote witnessing procedure does not limit other duties and obligations

(1)The use of the remote witnessing procedure applies in addition to any other duty or obligation under any Act (including any Commonwealth Act) or at common law applying to a person as a principal or witness to a power of attorney or other document.

(2)The use of the remote witnessing procedure does not limit any requirement imposed by this Act by which a person must not write or do something without first being satisfied of certain matters.

Example

Sections 36, 49 and 98 impose certain certification requirements.

Part 2—Non-enduring Powers of Attorney

Division 1—Definitions

6Definitions

In this Part—

statutory owner has the same meaning as in the Settled Land Act 1958;

tenant for life has the same meaning as in the Settled Land Act 1958;

trustee includes a tenant for life and a statutory owner.

Division 2—Scope and making of general non-enduring powers of attorney

7General non-enduring power of attorney

(1)A general non-enduring power of attorney that is in or to the effect of the form in the Schedule has the effect of giving the attorney under the power authority to do anything on behalf of the principal that a principal can lawfully do by an attorney.

(2)A general non-enduring power of attorney that is in or to the effect of the form in the Schedule does not have the effect—

(a)of empowering the attorney to delegate a power under the power of attorney, unless so specified in the power of attorney; and

(b)of delegating to the attorney the execution or exercise of any trust, power or discretion vested in the principal as trustee (whether alone or jointly with any other person or persons).

8Appointment of more than one attorney

(1)A principal under a general non-enduring power of attorney may appoint more than one person as attorneys under the power.

(2)If more than one attorney is appointed under the power—

(a)the principal may appoint the attorneys to act jointly or jointly and severally; or

(b)if the principal does not specify how the attorneys are appointed, the attorneys are taken to be appointed to act jointly.

9Appointment of alternative attorneys

(1)A principal under a general non-enduring power of attorney may appoint one or more persons as alternative attorneys under the power.

(2)The principal may specify in the power of attorney the circumstances in which any alternative attorney may act under the power.

10When attorney's power is exercisable

(1)A principal may specify in a general non-enduring power of attorney a time from which, a circumstance in which or an occasion on which the power under the power of attorney is exercisable.

(2)If a specification is not made in a general non‑enduring power of attorney under subsection (1), the powers under the general non‑enduring power of attorney are exercisable once the power of attorney is made.

Division 3—Execution of non-enduring power of attorney and execution of other documents under non-enduring power of attorney

11How should a non-enduring power of attorney be executed?

(1)A non-enduring power of attorney may be executed—

(a)by the principal signing the non-enduring power of attorney; or

(b)by another person signing the non-enduring power of attorney, in the presence of and at the direction of the principal.

(2)If a non-enduring power of attorney is executed by another person signing the non-enduring power of attorney in the presence of and at the direction of the principal—

(a)2 other persons must be present and witness the person signing the non-enduring power of attorney; and

(b)the other persons must sign the non-enduring power of attorney.

(3)For the purposes of this section, a non-enduring power of attorney may be executed by using the remote witnessing procedure and is a valid non-enduring power of attorney.

(4)For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.

(5)For the purposes of this section "in the presence of" includes being present by audio visual link in accordance with the remote witnessing procedure.

12Power of an attorney to execute instruments

(1)An attorney acting under a non-enduring power of attorney may, if the attorney thinks fit—

(a)execute any instrument with the attorney's own signature, and, where sealing is required or employed, with the attorney's own seal (whether or not the power of attorney was given by hand); and

(b)do any other thing in the attorney's own name.

(2)An instrument that is executed by an attorney must be executed in a way that shows that the attorney executes it as an attorney for the principal.

(3)An instrument that is executed or a thing that is done, by the attorney under a power of attorney, in the way specified in this section, is as effective as if it had been done by the principal—

(a)with the principal's signature; or

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

(c)in the principal's name.

(4)An instrument to which section 74(3) or (4) of the Property Law Act 1958 applies may be executed either as provided for in that section or in this section.

Division 4—Protection from liability

13Interpretation

For the purpose of this Division, knowledge that a non-enduring power of attorney is invalid or has been revoked includes the following—

(a)knowledge of the happening of an event that invalidates or revokes the non-enduring power of attorney or a power under the non‑enduring power of attorney;

(b)having reason to believe that the non‑enduring power of attorney, or a power under the non-enduring power of attorney, is invalid or has been revoked.

14Protection for an attorney who does not know of revocation or invalidity

An attorney under a non-enduring power of attorney, who acts in good faith, does not incur any liability, as against the principal or anyone else, merely because the attorney, purports to exercise power under the power of attorney and does not know that the power being exercised, or the power of attorney, is invalid or has been revoked.

15Protection for a third person who does not know of revocation or invalidity when dealing with attorney

If a person—

(a)acts in reliance on a non-enduring power of attorney; and

(b)acts in good faith and without knowing the power of attorney is invalid or has been revoked—

that person (and any person claiming under that person) is entitled to rely on the power, despite the invalidity or revocation, as against the principal and any other person.

Division 5—Proof of non-enduring
power of attorney

16Proof of non-enduring power of attorney

(1)A non-enduring power of attorney may be proved by a copy of the instrument creating the power that is certified as provided for in this section.

(2)Each page, other than the last page, of the copy must be certified to the effect that the copy of that page is a true and complete copy of the corresponding page of the original instrument.

(3)The last page of the copy must be certified to the effect that the copy of the instrument is a true and complete copy of the original instrument.

(4)Certification must be by one of the following persons—

(a)an Australian legal practitioner;

(b)a financial services licensee;

(c)a justice of the peace;

(d)a public notary;

(e)any other person authorised by law to administer an oath or affirmation;

(f)a person of a prescribed class.

(5)If a copy of an instrument creating a non-enduring power of attorney has been certified as provided for in this section, the non-enduring power of attorney may also be proved by a copy of the certified copy of the instrument, if the later copy is also certified as provided for in this section.

(6)In this section—

justice of the peace means a person appointed as a justice of the peace under the Honorary Justices Act 2014;

public notary has the same meaning as in the Public Notaries Act 2001.

Division 6—Powers of attorney for security

17Definition

In this Division—

power of attorney for security means a non-enduring power of attorney—

(a)that states that it is irrevocable; and

(b)that is given by the principal to secure—

(i)a proprietary interest of the attorney; or

(ii)the performance of an obligation owed to the attorney.

18Operation of powers of attorney for security

(1)A power of attorney for security that is given to secure a proprietary interest may be given to the person entitled to the proprietary interest and to any person deriving title to that proprietary interest under that person.

(2)A person who is given a power of attorney for security as a person deriving title to a proprietary interest under another person is an attorney under the power for all purposes of the power.

(3)Subsections (1) and (2) do not affect any right to appoint a substitute attorney given by the power of attorney.

19Revocation of powers of attorney for security

As long as—

(a)the attorney under a power of attorney for security has the proprietary interest that is secured by the power; or

(b)the obligation owed to an attorney under a power of attorney for security is undischarged—

the following paragraphs apply to the power of attorney for security—

(c)it is not capable of being revoked by the principal, without the consent of the attorney;

(d)it is not revoked—

(i)by the death of the principal; or

(ii)by the principal not having capacity; or

(iii)by the principal becoming insolvent under administration; or

(iv)if the principal is a body corporate, by the winding up or dissolution of the principal.

20Protection for a person who does not know of revocation of a power of attorney for security

(1)A person who acts in reliance on the purported exercise of a power by an attorney under a power of attorney for security—

(a)is entitled to assume that the power of attorney for security cannot be revoked unless the principal does so with the consent of the attorney; and

(b)must not be treated as knowing that the power of attorney for security has been revoked unless the person knows that the power has been revoked by the principal doing so with the consent of the attorney.

(2)Subsection (1) does not apply if the person knows that the power of attorney was not in fact given to secure a proprietary interest or the performance of an obligation.

Part 3—Enduring powers of attorney—scope, making and related issues

Division 1—Principles

21Principles to be applied by persons acting under this Act or an enduring power of attorney

(1)If a person is exercising a power, carrying out a function or performing a duty under this Act for a principal under an enduring power of attorney who does not have decision making capacity in relation to one or more matters, the person—

(a)must do so in a way that is as least restrictive of the principal's ability to decide and act as is possible in the circumstances; and

(b)in doing so must ensure that, the principal is given practicable and appropriate support to enable the principal to participate in decisions affecting the principal as much as possible in the circumstances.

(2)If an attorney under an enduring power of attorney is making a decision about a matter on behalf of a principal who does not have decision making capacity in relation to that matter, the attorney must—

(a)give all practicable and appropriate effect to the principal's wishes; and

(b)take any steps that are reasonably available to encourage the principal to participate in decision making, even though the principal does not have decision making capacity; and

(c)act in a way that promotes the personal and social wellbeing of the principal, including by—

(i)recognising the inherent dignity of the principal; and

(ii)having regard to the principal's existing supportive relationships, religion, values and cultural and linguistic environment; and

(iii)respecting the confidentiality of confidential information relating to the principal.

Division 2—Scope of power

22Enduring power of attorney

(1)By an enduring power of attorney a person may authorise an eligible attorney to do anything on behalf of the person that a person can lawfully do by an attorney.

(2)Without limiting subsection (1), a person may confine what is authorised to be done by an attorney—

(a)to personal matters only; or

(b)to financial matters only; or

(c)to matters specified in the instrument of appointment.

(3)Despite any rule of law to the contrary an enduring power of attorney is not revoked by the principal, after making the power, becoming a person who does not have decision making capacity for any matters to which the power of attorney applies.

(4)In this section—

eligible attorney means a person who is eligible under Division 3 to be appointed as an attorney under the power of attorney.

Note

See section 26 for matters for which power cannot be given under an enduring power of attorney.

23Who may make an enduring power of attorney?

(1)A person may not make an enduring power of attorney unless—

(a)the person is of or over 18 years of age; and

(b)the person has decision making capacity in relation to making the enduring power of attorney.

(2)For the purpose of section 4(1)(a), understanding the effect of the decision to make an enduring power of attorney includes understanding the following matters—

(a)that the principal may, in the power of attorney, place conditions on the power given to the attorney and give instructions to the attorney about the exercise of the power given to the attorney;

(b)when the power of attorney commences;

(c)that once the power of attorney is exercisable in relation to a matter, the attorney has the same powers the principal has, when the principal has decision making capacity for that matter, to do anything for which the power for that matter is given;

(d)that the principal may revoke the power of attorney at any time when the principal has decision making capacity in relation to making the power of attorney;

(e)that the power of attorney continues even if the principal subsequently becomes a person who does not have decision making capacity for a matter in the power of attorney;

(f)that at any time when the principal does not have decision making capacity in relation to revoking the power of attorney, the principal is unable to effectively oversee the use of the power.

24Conditions and instructions in an enduring power of attorney

A person making an enduring power of attorney may place conditions on the exercise of the power or give instructions about the exercise of the power.

25Attorney not able to delegate power

An enduring power of attorney does not have the effect of empowering the attorney to delegate a power under the enduring power of attorney.

26Matters for which power cannot be given under an enduring power of attorney

To avoid doubt, despite section 22, a principal under an enduring power of attorney is not able to authorise an attorney under that power to—

(a)make or revoke a will for the principal; or

(b)make or revoke an enduring power of attorney for the principal; or

(c)vote on the principal's behalf in an election for the State or the Commonwealth or another State or a Territory of the Commonwealth or a local election or a referendum; or

(d)consent to the entering into or dissolution of a marriage of the principal or of a sexual relationship of the principal; or

(e)make or give effect to a decision—

(i)about the care and wellbeing of any child of the principal; or

(ii)about the adoption of a child under 18 years of age of the principal; or

(f)to enter into, or agree to enter into, a surrogacy arrangement, within the meaning of the Assisted Reproductive Treatment Act 2008, on the principal's behalf; or

(g)consent to the making or discharge of a substitute parentage order, within the meaning of the Status of Children Act 1974, on the principal's behalf; or

(h)manage the estate of the principal on the death of the principal; or

(i)consent to an unlawful act.

27Power of an attorney to execute instruments

Section 12 applies to an attorney who acts under an enduring power of attorney in the same way that it applies to an attorney who acts under a non‑enduring power of attorney.

Division 3—Appointment of attorney

28Who is eligible to be appointed as an attorney?

(1)An individual is eligible to be appointed as an attorney under an enduring power of attorney if the individual is a person—

(a)who is of or over 18 years of age; and

(b)who is not an insolvent under administration; and

(c)who, if the individual is to be an attorney for financial matters—

(i)has not been convicted or found guilty of an offence involving dishonesty; or

(ii)if the person has been convicted or found guilty of an offence involving dishonesty, has disclosed the conviction or finding of guilt to the principal and the disclosure of the conviction or finding of guilt has been recorded in the enduring power of attorney; and

(d)who is not a care worker, a health provider or an accommodation provider for the principal.

(2)A trustee company is eligible to be appointed as an attorney for financial matters under an enduring power of attorney if the company is not a company against which a proceeding for winding up has commenced.

(3)The Public Advocate is eligible to be appointed as an attorney under an enduring power of attorney for personal matters.

29Attorney may be occupant of position

An attorney under an enduring power of attorney may be appointed as being the occupant of a position, however described, at the time the power of attorney is made or from time to time.

30Appointment of more than one attorney

(1)A principal under an enduring power of attorney may appoint more than one person as attorneys under the power.

(2)If more than one attorney is appointed under the power, the principal may specify the matters for which each attorney is to act.

(3)If more than one attorney is appointed under the power, as to all or any of the matters under the power—

(a)the principal may appoint any of the attorneys to act—

(i)as joint attorneys; or

(ii)as several attorneys; or

(iii)as joint and several attorneys; or

(iv)as majority attorneys; or

(b)if the principal does not specify how the attorneys are appointed, the attorneys are taken to be appointed to act as joint attorneys.

(4)Unless an enduring power of attorney otherwise provides, if attorneys under the enduring power of attorney are appointed—

(a)to act jointly, the attorneys are authorised to act under the power unanimously, and, if a document is required to be signed, by all signing the document; or

(b)to act severally, the attorneys are authorised to act under the power as one alone and, if a document is required to be signed, by signing the document as one alone; or

(c)to act jointly and severally, the attorneys are authorised to act under the power—

(i)by all agreeing and, if a document is required to be signed, by all signing the document; or

(ii)as one alone or by more than one agreeing and, if a document is required to be signed, by the one alone signing the document or if more than one agree, by those who agree signing the document; or

(d)to act by a majority, the attorneys are authorised to act under the power if a majority of the attorneys agree and, if a document is required to be signed, by the majority who agree signing the document.

31Appointment of alternative attorneys

(1)Subject to subsection (1A), a principal under an enduring power of attorney may appoint—

(a)one or more persons as alternative attorneys for an attorney appointed under the power of attorney; or

(b)a person as an alternative attorney in respect of more than one attorney appointed under the power of attorney.

(1A)A principal must not appoint a person under subsection (1) unless the person is eligible to be appointed as an attorney under section 28.

(2)An alternative attorney is authorised to act under the enduring power of attorney—

(a)in the circumstances specified in the power of attorney; or

(b)if no circumstances are specified in the power of attorney—

(i)if the attorney for whom the alternative attorney is appointed—

(A)dies; or

(B)does not have the decision making capacity for the matters to which the appointment applies; or

(C)is otherwise not willing or able to act; or

(ii)if the appointment of the attorney for whom the alternative attorney is appointed is revoked by the operation of section 54.

(3)An alternative attorney must act under the enduring power of attorney in the same manner as the attorney for whom the alternative attorney is appointed to act, unless the enduring power of attorney otherwise provides.

Note

See section 30(4) for the manner in which the attorney acts.

(4)The provisions of this Act that relate to enduring powers of attorney apply to an alternative attorney appointed under an enduring power of attorney, when the alternative attorney is acting under the power of attorney, in the same way that they apply to any attorney appointed under the power of attorney.

Division 4—Making the power

32Form of enduring power of attorney

An enduring power of attorney must be in the prescribed form.

Note

See section 53 of the Interpretation of Legislation Act 1984 for the effect of a form in or to the like effect of the prescribed form.

33How should an enduring power of attorney be executed?

(1)An instrument creating an enduring power of attorney must be executed—

(a)by—

(i)the principal signing the instrument; or

(ii)a person, who is eligible to do so under section 34, signing the instrument in the presence of and at the direction of the principal; and

(b)by 2 persons—

(i)who are present and who witness the signing of the instrument; and

(ii)who sign and date the instrument in the presence of the principal and in the presence of each other; and

(iii)who certify in writing in the instrument in the manner required by section 36.

(2)For the purposes of this section, an enduring power of attorney may be executed by using the remote witnessing procedure and is a valid enduring power of attorney.

(3)For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.

(4)For the purposes of this section "in the presence of" includes being present by audio visual link in accordance with the remote witnessing procedure.

34Who is eligible to sign an enduring power of attorney at the direction of the principal?

(1)A person is eligible to sign an instrument creating an enduring power of attorney at the direction of the principal if the person—

(a)is of or over the age of 18 years; and

(b)is not a witness to the signing of the instrument; and

(c)is not an attorney under the enduring power of attorney.

(2)To avoid doubt a person is not excluded from being eligible to sign an instrument creating an enduring power of attorney at the direction of the principal merely because the person is an employee of an attorney for the principal who signs the instrument while the person is acting in the ordinary course of that employment.

35Who can witness the signing of an instrument creating an enduring power of attorney?

(1)As to the 2 persons who, under section 33(b), witness the signing of an instrument creating an enduring power of attorney—

(a)both persons must be eligible to do so under subsection (2); and

(b)one person must be either authorised to witness affidavits or a medical practitioner.

(2)A person is eligible to witness the signing of an instrument creating an enduring power of attorney if the person—

(a)is of or over the age of 18 years; and

(b)is not signing the instrument at the direction of the principal; and

(c)is not an attorney under the power of attorney; and

(d)is not—

(i)a relative of the principal; or

(ii)a relative of an attorney under the power of attorney; or

(iii)a care worker or an accommodation provider for the principal.

(3)To avoid doubt a person is not excluded from being eligible to witness the signing of an instrument creating an enduring power of attorney merely because the person is an employee of an attorney for the principal who signs the instrument while the person is acting in the ordinary course of that employment.

36Certification of witness to signing

(1)A witness who witnesses a principal signing an instrument creating an enduring power of attorney must—

(a)certify in writing in the instrument—

(i)that the principal appeared to freely and voluntarily sign the instrument in the presence of the witness; and

(ii)that, at the time the principal signed the instrument, the principal appeared to the witness to have decision making capacity in relation to the making of the enduring power of attorney; and

(b)state that the witness is not—

(i)an attorney under the power of attorney; or

(ii)a relative of the principal or of an attorney under the power of attorney; or

(iii)a care worker or an accommodation provider for the principal; and

(c)if the witness is acting as a person who is authorised to witness affidavits or a medical practitioner, state the qualification on which the witness is acting.

(2)A witness who witnesses another person signing an instrument creating an enduring power of attorney at the direction of the principal must—

(a)certify in writing on the instrument—

(i)that, in the presence of the witness, the principal appeared to freely and voluntarily direct the person to sign for the principal; and

(ii)that the person signed the instrument in the presence of the principal and the witness; and

(iii)that, at the time the person signed the instrument, the principal appeared to the witness to have decision making capacity in relation to making the enduring power of attorney; and

(b)state that the witness is not—

(i)the person signing at the direction of the principal; or

(ii)an attorney under the power of attorney; or

(iii)a relative of the principal or of an attorney under the power of attorney; or

(iv)a care worker or an accommodation provider for the principal; and

(c)if the witness is acting as a person who is authorised to witness affidavits or as a medical practitioner, state the qualification on which the witness is acting.

(3)A certification and statement under subsection (1) or (2) must be signed by the witness making it.

(4)For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.

(5)For the purposes of this section "in the presence of" includes being present by audio visual link in accordance with the remote witnessing procedure.

37Acceptance by attorney

(1)An enduring power of attorney is effective as to an attorney appointed under the power of attorney if—

(a)in the instrument creating the power of attorney the attorney signs a statement of acceptance of appointment that is in the prescribed form; and

Note

See section 53 of the Interpretation of Legislation Act 1984 for the effect of a form in or to the like effect of the prescribed form.

(b)in the case of an attorney who is not a trustee company, a person of or over 18 years of age witnesses the signing of the statement of acceptance under paragraph (a), and signs that he or she has witnessed the signing; and

(c)in the statement of acceptance, the attorney states that the attorney—

(i)is eligible under this Part of this Act to act as an attorney under an enduring power of attorney; and

(ii)understands the obligations of an attorney under an enduring power of attorney under this Act and the consequences of failing to comply with those obligations; and

(iii)undertakes to act in accordance with the provisions of this Act that relate to enduring powers of attorney.

(2)For the purposes of subsection (1)(b), an enduring power of attorney accepted by an attorney who is not a trustee company is effective if the statement of acceptance is signed using the remote witnessing procedure.

(3)For the purposes of subsection (1)(b), a signature may be an electronic signature if the remote witnessing procedure is used.

38Acceptance by alternative attorney

(1)An enduring power of attorney is effective as to an alternative attorney appointed under the power of attorney if—

(a)in the instrument creating the power of attorney, the alternative attorney signs a statement of acceptance of appointment that is in the prescribed form; and

Note

See section 53 of the Interpretation of Legislation Act 1984 for the effect of a form in or to the like effect of the prescribed form.

(b)in the case of an alternative attorney who is not a trustee company, a person of or over 18 years of age witnesses the signing of the statement of acceptance under paragraph (a), and signs that he or she has witnessed the signing; and

(c)in the statement of acceptance, the alternative attorney states that the alternative attorney—

(i)is eligible under this Part of this Act to act as an attorney under an enduring power of attorney; and

(ii)understands the obligations of an attorney under an enduring power of attorney under this Act and the consequences of failing to comply with those obligations; and

(iii)undertakes to act in accordance with the provisions of this Act that relate to enduring powers of attorney; and

(iv)understands the circumstances in which the alternative attorney is authorised to act under this Act; and

(v)is prepared to act in the place of the attorney for whom the alternative attorney is appointed, if still eligible to act as attorney, when authorised to do so under this Act.

Note

See section 31 for the circumstances in which an alternative attorney is authorised to act in the place of the attorney for whom the alternative attorney is appointed.

(2)For the purposes of subsection (1)(b), an enduring power of attorney accepted by an alternative attorney who is not a trustee company is effective if the statement of acceptance is signed using the remote witnessing procedure.

(3)For the purposes of subsection (1)(b), a signature may be an electronic signature if the remote witnessing procedure is used.

Part 4—Enduring powers of attorney—Commencement

39When attorney's power is exercisable

(1)A principal may specify, in an enduring power of attorney, a time from which, a circumstance in which or an occasion on which the power for all matters or the power for a specified matter under the power of attorney is exercisable, which may be—

(a)immediately on the making of the power; or

(b)when the principal ceases to have decision making capacity for the matters or matter; or

(c)any other time, circumstance or occasion.

(2)If a specification is not made in an enduring power of attorney under subsection (1), the power for all matters under the enduring power of attorney is exercisable on and from the making of the power of attorney.

(3)Despite a specification being made under subsection (1) in an enduring power of attorney, if before the specified time, circumstance or occasion for a matter, the principal does not have decision making capacity for the matter, an attorney who has power for the matter may exercise that power during any period when the principal does not have that capacity.

(4)If an attorney is acting under an enduring power of attorney as to a matter because the principal does not have decision making capacity for the matter, a person dealing with the attorney may ask for evidence to establish that the principal does not have the decision making capacity.

Note

An example of evidence that may be given under subsection (4) is a medical certificate as to the principal's decision making capacity.

40Attorney to notify if acting because the principal does not have decision making capacity

(1)Before an attorney under an enduring power of attorney for the first time commences to exercise power for a matter because the principal does not have decision making capacity for that matter, the attorney must take reasonable steps to give notice that the attorney is commencing to exercise the power to any person who, the enduring power of attorney states, should be so notified.

(2)A failure by the attorney to give a notification under this section does not affect any exercise by the attorney of power under the enduring power of attorney.

(3)For the purpose of subsection (1), reasonable steps may include sending the notification by post to—

(a)for an individual, the last known residential address of the individual; or

(b)for a body corporate, the last known business address of the body corporate.

41Regaining decision making capacity does not prevent exercise of power by attorney

(1)If an attorney under an enduring power of attorney has commenced exercising power for any matter under that enduring power of attorney because the principal does not have decision making capacity for the matter, the attorney may continue to exercise that power even if the principal regains decision making capacity for the matter.

(2)Nothing in subsection (1) is to be taken to enable a person to exercise power under an enduring power of attorney that is invalid or has been revoked.

42Principal may continue to exercise power

To avoid doubt, the giving of an enduring power of attorney does not affect the principal's power to do anything that the principal is otherwise legally capable of doing.

Part 5—Enduring powers of attorney—Ending

Division 1—Provision in enduring power of attorney as to revocation

43Terms of enduring power of attorney as to revocation

(1)An enduring power of attorney is revoked according to its terms.

(2)The provisions in Divisions 2 and 3 as to revocation of an enduring power of attorney are subject to subsection (1).

Division 2—Revocation by principal

44Revocation by principal

The principal under an enduring power of attorney may revoke the enduring power of attorney or the appointment of an attorney or alternative attorney under the enduring power of attorney if the principal has decision making capacity in relation to making an enduring power of attorney giving the same power.

45Form of revocation

A revocation under section 44 must be by instrument (instrument of revocation) in the prescribed form.

Note

See section 53 of the Interpretation of Legislation Act 1984 for the effect of a form in or to the like effect of the prescribed form.

46How should an instrument of revocation be executed?

(1)An instrument of revocation must be executed—

(a)by—

(i)the principal signing the instrument; or

(ii)a person, who is eligible to do so under section 47, signing the instrument in the presence of and at the direction of the principal; and

(b)by 2 persons who—

(i)are present and who witness the principal or person signing the instrument; and

(ii)sign and date the instrument in the presence of the principal and in the presence of each other; and

(iii)certify in writing in the instrument in the manner required by section 49.

(2)For the purposes of this section, an instrument of revocation may be executed by using the remote witnessing procedure and is a valid instrument of revocation.

(3)For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.

(4)For the purposes of this section "in the presence of" includes being present by audio visual link in accordance with the remote witnessing procedure.

47Who is eligible to sign the instrument of revocation at the direction of the principal?

(1)A person is eligible to sign the instrument of revocation at the direction of the principal if the person—

(a)is of or over the age of 18 years; and

(b)is not a witness to the signing of the instrument of revocation; and

(c)is not an attorney under the enduring power of attorney.

(2)To avoid doubt a person is not excluded from being eligible to sign an instrument of revocation at the direction of the principal merely because the person is an employee of an attorney for the principal who signs the instrument while the person is acting in the ordinary course of that employment.

48Who can witness the signing of the instrument of revocation?

(1)As to the 2 persons who, under section 46(b), witness the signing of the instrument of revocation—

(a)both persons must be eligible to do so under subsection (2); and

(b)one person must be either authorised to witness affidavits or a medical practitioner.

(2)A person is eligible to witness the signing of the instrument if the person—

(a)is of or over the age of 18 years; and

(b)is not signing the instrument at the direction of the principal; and

(c)is not an attorney under the power of attorney; and

(d)is not—

(i)a relative of the principal; or

(ii)a relative of an attorney under the power of attorney; or

(iii)a care worker or an accommodation provider for the principal.

(3)To avoid doubt a person is not excluded from being eligible to witness the signing of the instrument of revocation merely because the person is an employee of an attorney for the principal who signs the instrument while the person is acting in the ordinary course of that employment.

49Certification of witness to signing of instrument of revocation

(1)A witness who, under section 46(b)(i) witnesses a principal signing an instrument of revocation must—

(a)certify in writing in the instrument—

(i)that the principal appeared to freely and voluntarily sign the instrument in the presence of the witness; and

(ii)that, at the time the principal signed the instrument, the principal appeared to the witness to have decision making capacity to revoke the enduring power of attorney; and

(b)state that the witness is not—

(i)an attorney under the power of attorney; or

(ii)a relative of the principal or an attorney under the power of attorney; or

(iii)a care worker or an accommodation provider for the principal; and

(c)if the witness is acting as a person who is authorised to witness affidavits or a medical practitioner, state the qualification on which the witness is acting.

(2)A witness who, under section 46(b)(i) witnesses another person signing an instrument of revocation at the direction of the principal must—

(a)certify in writing in the instrument—

(i)that, in the presence of the witness, the principal appeared to freely and voluntarily direct the person to sign for the principal; and

(ii)that the person signed the instrument in the presence of the principal and the witness; and

(iii)that, at the time the person signed the instrument, the principal appeared to the witness to have decision making capacity to revoke the enduring power of attorney; and

(b)state that the witness is not—

(i)the person signing at the direction of the principal; or

(ii)an attorney under the power of attorney; or

(iii)a relative of the principal or of an attorney under the power of attorney; or

(iv)a care worker or an accommodation provider for the principal; and

(c)if the witness is acting as a person who is authorised to witness affidavits or as a medical practitioner, state the qualification on which the witness is acting.

(3)A certification and statement under subsection (1) or (2) must be signed by the witness making it.

(4)For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.

(5)For the purposes of this section "in the presence of" includes being present by audio visual link in accordance with the remote witnessing procedure.

50Notification of revocation

(1)On revoking an enduring power of attorney under this Division, the principal must take reasonable steps to inform any attorneys under the power that it has been revoked.

(2)On revoking the appointment of an attorney or alternative attorney under this Division, the principal must take reasonable steps to inform that attorney or alternative attorney and all other attorneys and alternative attorneys under the power that the appointment has been revoked.

(3)A failure by the principal to give a notification under this section does not affect the validity of the revocation.

(4)For the purpose of subsections (1) and (2), reasonable steps may include sending the notification by post to—

(a)for an individual, the last known residential address of the individual; or

(b)for a body corporate, the last known business address of the body corporate.

Division 3—Other revocation

51Death of principal

An enduring power of attorney is revoked on the death of the principal.

52Death of attorney

When an attorney under an enduring power of attorney dies, the enduring power of attorney is revoked so far as it gives power to that attorney.

53Attorney does not have decision making capacity

If an attorney under an enduring power of attorney becomes a person who does not have decision making capacity for the matters to which the enduring power of attorney applies, the power of attorney is revoked so far as it gives power to that attorney.

54Revocation of appointment and notification of revocation, winding up etc.

(1)An enduring power of attorney is revoked so far as it gives power to an attorney who is an individual, if, after appointment—

(a)the attorney becomes an insolvent under administration; or

(b)the attorney becomes a care worker, a health provider or an accommodation provider for the principal; or

(c)for an attorney for financial matters, the attorney is convicted or found guilty of an offence involving dishonesty.

(2)An enduring power of attorney is revoked so far as it gives power to an attorney that is a trustee company, if, after appointment of the trustee company the company is wound up or ceases to be registered.

(3)An attorney must take reasonable steps to give notice in accordance with subsection (4)—

(a)if the appointment of the attorney is revoked by the operation of subsection (1) or (2); or

(b)in the case of an attorney that is a trustee company, if—

(i)a proceeding against the company for winding up commences; or

(ii)the company is convicted or found guilty of an offence involving dishonesty.

(4)Notice of an event referred to in subsection (3)(a) or (b) must be given to—

(a)the principal, if the principal has decision making capacity for the matter for which the attorney has power; and

(b)any other attorney; and

(c)any alternative attorney; and

(d)if the principal does not have decision making capacity for the matter for which the attorney has power and there is no person to notify under paragraph (b) or (c)—

(i)the nearest relative of the principal; or

(ii)if the attorney is not able to notify the nearest relative, the Public Advocate.

(5)A notification under subsection (3) must be in the prescribed form.

Note

See section 53 of the Interpretation of Legislation Act 1984 for the effect of a form in or to the like effect of the prescribed form.

(6)A failure by the attorney to give a notification under this section does not affect the validity of the revocation of the power.

Note

VCAT also has power to revoke a power of attorney, see Part 8.

55Revocation by later enduring power of attorney

(1)An enduring power of attorney is revoked by a later enduring power of attorney of the principal.

(2)Subsection (1) does not apply if the principal specifies otherwise in the later enduring power of attorney.

Division 4—Resignation of attorney or alternative attorney when principal has decision making capacity

56Resignation when principal has decision making capacity

(1)An attorney or alternative attorney under an enduring power of attorney, who has power for a matter, may resign as attorney or alternative attorney for that matter at any time when the principal has decision making capacity for the matter.

(2)On the resignation of the attorney or alternative attorney, the enduring power of attorney is revoked so far as it gives power to the attorney or alternative attorney for that matter.

57Form of resignation

The resignation of an attorney or alternative attorney under this Division must be in the prescribed form.

Note

See section 53 of the Interpretation of Legislation Act 1984 for the effect of a form in or to the like effect of the prescribed form.

58Notification of resignation

(1)A person who resigns as attorney for a matter under this Division must take reasonable steps to inform the following persons of the resignation—

(a)the principal;

(b)any other attorney and any alternative attorney under the enduring power of attorney.

(2)A person who resigns as alternative attorney for a matter under this Division must take reasonable steps to inform the following persons of the resignation—

(a)the principal;

(b)any attorney under the enduring power of attorney.

(3)A failure by the attorney or alternative attorney to give a notification under this section does not affect the validity of the resignation of the attorney.

Division 5—Resignation of attorney or alternative attorney when principal does not have decision making capacity

59Resignation when principal does not have decision making capacity

(1)An attorney under an enduring power of attorney, who has power for a matter, may resign as attorney for that matter at any time when the principal does not have decision making capacity for the matter—

(a)if there is another attorney who has power for the matter; or

(b)if there is no other attorney who has power for the matter but there is an alternative attorney who has power for the matter who is able and willing to act; or

(2)VCAT may make an order staying the operation of an order to which an application for rehearing relates pending the determination of the rehearing of the application.

129Nature of rehearing

Subject to any contrary provision in this Division or Division 5, the VCAT Act applies to a rehearing under this Division as if it were a hearing under that Act.

Division 5—Application and procedure, VCAT rehearing

130Who can apply for a rehearing?

(1)A person may apply to VCAT for a rehearing under Division 4—

(a)if the person was a party to the hearing of the application at first instance; or

(b)if the person was given notice of the hearing of the application at first instance but was not a party to the hearing of the application, with the leave of VCAT; or

(c)if the person was not given notice of the hearing of the application at first instance and the person has a special interest in the affairs of the principal, with the leave of VCAT; or

(d)if the person is the Public Advocate, without the leave of VCAT.

*                *                *                *                *

131Who is entitled to notice of rehearing?

(1)For an application for a rehearing, each person who was entitled to notice of the application for the hearing at first instance is a person who is entitled to notice under section 72(1)(b) of the VCAT Act.

(2)For the hearing of an application for a rehearing, each person who was entitled to notice of the hearing at first instance is a person who is entitled to notice under section 99(1)(b) of the VCAT Act.

(3)For an order in a proceeding under the VCAT Act rehearing an application for an order under Division 2, each person who was entitled to notice of an order in the hearing at first instance is a person who is entitled to notice under section 116(2)(b) of that Act.

132Who are parties to the proceeding for the rehearing?

For a proceeding for the rehearing of an application under Division 2, each person who was a party to the proceeding at first instance is specified for the purpose of section 59(1)(a)(iv) of the VCAT Act.

133Time limit for making application

(1)An application for a rehearing or for leave to apply for a rehearing must be made within 28 days after the day of the order.

(2)For the purpose of subsection (1), if VCAT gives oral reasons for making an order and a party then requests written reasons under section 117 of the VCAT Act, the day on which the written reasons are given to the party is taken to be the day of the order.

Division 6—Effect on VCAT Act

134Effect on VCAT Act

Except as provided for in this Part, nothing in this Part is to be taken to affect the operation of the VCAT Act.

Division 7—Powers of VCAT with respect to wills

134AVCAT may open will

VCAT may open and read any paper or writing that is a will, a revoked will, a purported will or a copy of a will of—

(a)a principal under an enduring power of attorney who does not have testamentary capacity; or

(b)a deceased person who, immediately before the person died, was a principal under an enduring power of attorney.

134BVCAT may compel production of will

VCAT may make an order compelling a person who has possession or control of a will, a revoked will or a purported will of a principal who does not have testamentary capacity to produce that document to VCAT—

(a)for the purposes of section 134A; or

(b)on the application of an attorney under an enduring power of attorney.

134CVCAT may make copy of will available to attorney

VCAT may make available to an attorney under an enduring power of attorney a full or redacted copy of a will, a revoked will or a purported will of the principal if the principal does not have testamentary capacity.

Part 9—General

135Offences as to enduring powers of attorney

(1)A person must not dishonestly obtain an enduring power of attorney—

(a)to obtain financial advantage for the person or another person; or

(b)to cause loss to the principal or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both;

In the case of a body corporate, 2400 penalty units.

(2)A person must not dishonestly obtain the revocation of an enduring power of attorney—

(a)to obtain financial advantage for the person or another person; or

(b)to cause loss to the principal or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both;

In the case of a body corporate, 2400 penalty units.

(3)An attorney under an enduring power of attorney must not dishonestly use the enduring power of attorney—

(a)to obtain financial advantage for the attorney or another person; or

(b)to cause loss to the principal or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both;

In the case of a body corporate, 2400 penalty units.

(4)In this section a reference to an enduring power of attorney includes a reference to an enduring power of attorney that is invalid or has been revoked.

Notes

1The offences under this section are indictable offences that may be heard summarily.

2Section 137 applies to an offence against subsection (1), (2) or (3).

136Offences of dishonestly obtaining or using supportive attorney appointment

(1)A person must not dishonestly obtain the supportive attorney appointment—

(a)to obtain financial advantage for the person or another person; or

(b)to cause loss to the principal or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both.

(2)A supportive attorney under a supportive attorney appointment must not dishonestly use the supportive attorney appointment—

(a)to obtain financial advantage for the supportive attorney or another person; or

(b)to cause loss to the principal or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both.

(3)In this section a reference to supportive attorney appointment includes a reference to a supportive attorney appointment that is invalid or has been revoked.

Note

The offences under this section are indictable offences that may be heard summarily.

137Criminal liability of officers of bodies corporate—failure to exercise due diligence

(1)If a body corporate commits an offence against a provision of section 135(1), (2) or (3) an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

(2)In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—

(a)what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and

(b)whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and

(c)what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and

(d)any other relevant matter.

(3)Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

(4)An officer of a body corporate may commit an offence against section 135(1), (2) or (3) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.

(5)In this section—

body corporate has the same meaning as corporation has in section 57A of the Corporations Act;

officer, in relation to a body corporate, means—

(a)a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or

(b)a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.

138Recognition of enduring powers of attorney made in other States and Territories

(1)If an enduring power of attorney is made in another State or a Territory of the Commonwealth and complies with the requirements of that other State or Territory, then, to the extent the powers it gives could validly have been given by an enduring power of attorney made under this Act, the enduring power of attorney is taken to be an enduring power of attorney made under, and in compliance with, this Act.

(2)This section applies to an enduring power of attorney made in another State or a Territory of the Commonwealth, whether made before or after the commencement of this Act.

(3)In this section, a reference to an enduring power of attorney made in another State or a Territory of the Commonwealth includes a reference to an instrument in the nature of an enduring power of attorney, whether or not described as an enduring power of attorney.

139Regulations

(1)The Governor in Council may make regulations for or with respect to—

(a)requirements for remote witnessing procedures and the duties of witnesses and principals, including, but not limited to, different requirements for—

(i)different documents or classes of document; or

(ii)different witnesses or classes of witness; or

(iii)different principals or classes of principal; or

(iv)different forms or processes for the use of electronic signatures or the use or form of documents in electronic formats;

(b)forms;

(c)fees;

(d)persons or classes of person to be special witnesses;

(e)prescribing penalties not exceeding 20 penalty units for a contravention of the regulations;

(f)any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2)The regulations may—

(a)be of general or limited application;

(b)differ according to differences in time, place or circumstance;

(c)leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person;

(d)provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations whether—

(i)unconditionally or on specified conditions; and

(ii)either wholly or to the extent specified in the regulations.

Part 10—Savings and transitional provisions

Division 1—Transitional provisions

140Definitions

In this Part—

old enduring power of attorney means an enduring power of attorney, within the meaning of Part XIA of the Instruments Act 1958 (as in force before the commencement of section 144(2)), being an enduring power of attorney in force immediately before that commencement;

old enduring power of guardianship means an appointment of a person as an enduring guardian, made under Division 5A of Part 4 of the Guardianship and Administration Act 1986 (as in force before the commencement of section 145), being an appointment in force immediately before that commencement;

old non-enduring power of attorney means a power of attorney, to which Part XI of the Instruments Act 1958 (as in force before the commencement of section 144(1)) applied, being a power of attorney in force immediately before that commencement.

141Transitional provision—non-enduring powers of attorney

The amendments made to the Instruments Act 1958 by section 144(1) of this Act are not to be taken to affect the validity of an old non-enduring power of attorney and the law as in force under the Instruments Act 1958 immediately before the commencement of section 144(1) is taken to continue to have effect in relation to the old non‑enduring power of attorney.

142Transitional provision—old enduring powers of attorney

(1)The amendments made to the Instruments Act 1958 by section 144(2) of this Act are not to be taken to affect the validity of an old enduring power of attorney and, subject to subsection (2), the law as in force under the Instruments Act 1958 immediately before the commencement of section 144(2) is taken to continue to have effect in relation to the old enduring power of attorney.

(2)The following provisions of this Act are taken to apply to an old enduring power of attorney, as if it were an enduring power of attorney made under this Act—

(a)section 4;

(b)section 42;

(c)Divisions 2, 3 and 4 of Part 6;

(d)section 82;

(e)section 83;

(f)section 116(1)(a), (e), (f) and (g);

(g)Divisions 2, 3, 4 and 5 of Part 8, to the extent that they relate to section 116(1)(a), (e), (f) and (g).

(3)For the purpose of this section, a reference in any Act to an enduring power of attorney made under the Powers of Attorney Act 2014 includes a reference to an old enduring power of attorney.

143Transitional provision—old enduring powers of guardianship

(1)The amendments made to the Guardianship and Administration Act 1986 by Division 2 are not to be taken to affect the validity of an old enduring power of guardianship and, subject to subsection (2), the law as in force under the Guardianship and Administration Act 1986, immediately before the commencement of Division 2, is taken to continue to have effect in relation to the old enduring power of guardianship.

(2)The following provisions of this Act are taken to apply to an old enduring power of guardianship, as if it were an enduring power of attorney made under this Act—

(a)section 4;

(b)section 42;

(c)Divisions 2, 3 and 4 of Part 6;

(d)section 82;

(e)section 83;

(f)section 116(1)(a), (e), (f) and (g);

(g)Divisions 2, 3, 4 and 5 of Part 8, to the extent that they relate to section 116(1)(a), (e), (f) and (g).

Division 2—Amendment of the Instruments Act 1958 and the Guardianship and Administration Act 1986

144Amendment of the Instruments Act 1958

(1)Part XI of the Instruments Act 1958 is repealed.

(2)Part XIA of the Instruments Act 1958 is repealed.

145Repeal of Division 5A of Part 4 of the Guardianship and Administration Act 1986

Division 5A of Part 4 of the Guardianship and Administration Act 1986 is repealed.

146Repeal of sections 86 and 86A of the Guardianship and Administration Act 1986

Sections 86 and 86A of the Guardianship and Administration Act 1986 are repealed.

147Repeal of Schedule 4 to the Guardianship and Administration Act 1986

Schedule 4 to the Guardianship and Administration Act 1986 is repealed.

148Amendment of the Guardianship and Administration Act 1986

(1)In section 3(1) of the Guardianship and Administration Act 1986, the definitions of appointor and enduring guardian are repealed.

(2)In the definition of guardian in section 3(1) of the Guardianship and Administration Act 1986—

(a)in paragraph (b), for "35; or" substitute "35;";

(b)paragraph (c) is repealed.

(3)Section 4(1)(e) of the Guardianship and Administration Act 1986 is repealed.

(4)For section 37(1)(d) of the Guardianship and Administration Act 1986 substitute—

"(d)a person appointed by the patient as an attorney under an enduring power of attorney under the Powers of Attorney Act 2014 with power to make decisions in relation to the proposed procedure or treatment;".

(5)In section 42N(6)(d) of the Guardianship and Administration Act 1986, for "the enduring guardian" substitute "the attorney under the enduring power of attorney under the Powers of Attorney Act 2014,".

(6)In section 42V(6)(d) of the Guardianship and Administration Act 1986, for "the enduring guardian" substitute "the attorney under the enduring power of attorney under the Powers of Attorney Act 2014,".

Division 3—Powers of Attorney Amendment Act 2016

149Definition

In this Division, enduring power of attorney (2014) means a power of attorney made under section 22 as in force immediately before the commencement of section 4 of the Powers of Attorney Amendment Act 2016.

150Interpretation of Legislation Act 1984 not limited

Nothing in this Division limits the operation of the Interpretation of Legislation Act 1984.

151Enduring power of attorney (2014)

(1)Despite the commencement of section 4 of the Powers of Attorney Amendment Act 2016, an enduring power of attorney (2014) continues in existence for so long as that power of attorney is in force on and after that commencement.

(2)On and from the commencement of section 6 of the Powers of Attorney Amendment Act 2016, section 55 as amended by section 6 of that Act applies to an enduring power of attorney (2014).

(3)Despite the commencement of section 8 of the Powers of Attorney Amendment Act 2016, section 62 of this Act as in force immediately before the commencement of section 8 continues to apply to an enduring power of attorney (2014).

152Old enduring power of attorney

Despite section 142(2), on and from the commencement of section 6 of the Powers of Attorney Amendment Act 2016—

(a)Divisions 1 and 2 of Part 5 apply to an old enduring power of attorney that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act; and

(b)Division 3 of Part 5 as amended by section 6 applies to an old enduring power of attorney that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act.

153Old enduring power of guardianship

Despite section 143(2), on and from the commencement of section 6 of the Powers of Attorney Amendment Act 2016—

(a)Divisions 1 and 2 of Part 5 apply to an old enduring power of guardianship that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act; and

(b)Division 3 of Part 5 as amended by section 6 of that Act applies to an old enduring power of guardianship that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act.

154Applications for VCAT rehearing

Section 130 as amended by section 13 of the Powers of Attorney Amendment Act 2016 applies to an application made under section 130 that has been made but not determined immediately before that amendment.

Division 4—Transitional—Medical Treatment Planning and Decisions Act 2016

155Saving—effect of broader definition of personal matter

Despite the amendment of the definition of personal matter in section 3(1) by the Medical Treatment Planning and Decisions Act 2016—

(a)an enduring power of attorney as in force immediately before that amendment that applies in respect of medical treatment or medical research procedures continues to apply in the same manner on and after that amendment as if that amendment had not been made; and

(b)a supportive attorney whose appointment is in force immediately before that amendment that applies in respect of medical treatment or medical research procedures continues to apply in the same manner on and after that amendment.

156Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021

On and from the commencement of Part 13 of the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, any power of attorney or other document under this Act signed, executed or witnessed under this Act as modified by Part 4 of the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (as in force immediately before their revocation) continues to be a valid power of attorney or other document despite that revocation.

Schedule

Section 7

FORM OF GENERAL NON-ENDURING POWER OF ATTORNEY

This general non-enduring power of attorney is made under Part 2 of the Powers of Attorney Act 2014 and has effect as a deed.

This general non-enduring power of attorney is made on:

(insert date of making)

I,     (insert name of person making power of attorney)

of    (insert address of person making power of attorney)

appoint (insert name of attorney, or attorneys if appointing more than one)

of    (insert address(es) of attorney(s))

(include one of the following options)

to be my attorney

(or)

jointly to be my attorneys

(or)

jointly and severally to be my attorneys

(If appointing alternative attorney(s) include the following)

and I appoint (insert name of alternative attorney or alternative attorneys if appointing more than one)

of (insert address(es) of alternative attorney(s))

as alternative attorney for:

(insert name of attorney in respect of whom alternative attorney is appointed)

(If more than one alternative attorney is being appointed insert their names and addresses and the name of the attorney(s) for whom they are being appointed)

I authorise my attorney(s) to do on my behalf anything that I may lawfully authorise an attorney to do.

I specify that this power of attorney begins:

(Choose one option only, if no option is chosen the power begins immediately)

o  immediately

o  on this date: (insert date)

o  on this occasion: (insert occasion)

Signed as a deed by:

═══════════════

Endnotes

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 26 June 2014

Legislative Council: 7 August 2014

The long title for the Bill for this Act was "A Bill for an Act to consolidate certain aspects of the law as to powers of attorney and to otherwise provide for powers of attorney, to provide for matters to do with supportive attorneys, to repeal Parts XI and XIA of the Instruments Act 1958 and Division 5A of Part 4 of the Guardianship and Administration Act 1986, to make related amendments to those and other Acts and for other purposes."

The Powers of Attorney Act 2014 was assented to on 26 August 2014 and came into operation on 1 September 2015: section 2(2).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Powers of Attorney Act 2014 by Acts and subordinate instruments.

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Justice Legislation Amendment Act 2015, No. 20/2015

Assent Date:	16.6.15
Commencement Date:	S. 53 on 17.6.15: s. 2(3)
Current State:	This information relates only to the provision/s amending the Powers of Attorney Act 2014

Statute Law Revision Act 2015, No. 21/2015

Assent Date:	16.6.15
Commencement Date:	S. 3(Sch. 1 item 40) on 1.8.15: s. 2(1)
Current State:	This information relates only to the provision/s amending the Powers of Attorney Act 2014

Judicial Entitlements Act 2015, No. 29/2015

Assent Date:	11.8.15
Commencement Date:	S. 73 on 12.8.15: s. 2(1)
Current State:	This information relates only to the provision/s amending the Powers of Attorney Act 2014

Powers of Attorney Amendment Act 2016, No. 64/2016

Assent Date:	15.11.16
Commencement Date:	Ss 4–15 on 1.5.17: s. 2(2)
Current State:	This information relates only to the provision/s amending the Powers of Attorney Act 2014

Medical Treatment Planning and Decisions Act 2016, No. 69/2016

Assent Date:	29.11.16
Commencement Date:	Ss 150–152 on 12.3.18: s. 2(2)
Current State:	This information relates only to the provision/s amending the Powers of Attorney Act 2014

Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017, No. 41/2017

Assent Date:	19.9.17
Commencement Date:	Ss 24, 25 on 1.11.17: s. 2(2)
Current State:	This information relates only to the provision/s amending the Powers of Attorney Act 2014

Oaths and Affirmations Act 2018, No. 6/2018

Assent Date:	27.2.18
Commencement Date:	S. 68(Sch. 2 item 97) on 1.3.19: s. 2(2)
Current State:	This information relates only to the provision/s amending the Powers of Attorney Act 2014

Guardianship and Administration Act 2019, No. 13/2019

Assent Date:	4.6.19
Commencement Date:	S. 221(Sch. 1 item 38) on 1.3.20: s. 2(2)
Current State:	This information relates only to the provision/s amending the Powers of Attorney Act 2014

Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, No. 11/2021

Assent Date:	23.3.21
Commencement Date:	Ss 89–104 on 26.4.21: s. 2(2)
Current State:	This information relates only to the provision/s amending the Powers of Attorney Act 2014

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3   Amendments Not in Operation

This version does not contain amendments that are not yet in operation.

4   Explanatory details

No entries at date of publication.