Powers of Attorney Amendment Act 2013 (NSW)

An Act to amend the Powers of Attorney Act 2003 to make further provision with respect to powers of attorney; and for related purposes.

1Name of Act

This Act is the Powers of Attorney Amendment Act 2013.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

Schedule 1Amendment of Powers of Attorney Act 2003 No 53[1]Section 3 Definitions

Omit the definition of prescribed form from section 3 (1).

[2]Section 3 (4)

Omit “(other than in Schedule 2)”.

[3]Section 8

Omit the section. Insert instead:

8Creation of prescribed power of attorney

An instrument (whether or not under seal) that is in or to the effect of a form prescribed by the regulations for the purposes of this section and is duly executed creates a prescribed power of attorney for the purposes of this Act.

[4]Section 14 Regulations may amend Schedule 3

Omit “Schedule 2 or 3 (or both)” from section 14 (1).

Insert instead “Schedule 3”.

[5]Section 14 (2)

Omit the subsection.

[6]Section 14A

Insert after section 14:

14AEffect of amendment of prescribed form or Schedule 3

The amendment or repeal of a form prescribed under section 8, or a provision of Schedule 3 that prescribes an expression or specifies a kind of gift or benefit for the purposes of section 11 (2), 12 (2) or 13 (2), does not:

• (a)

  confer any additional authority on an attorney under a power of attorney that was a prescribed power of attorney in force immediately before the day on which the amendment or repeal takes effect (an existing authority), or

• (b)

  remove any authority conferred on a principal by an existing authority, or

• (c)

  otherwise affect the continued operation of an existing authority.

[7]Section 20 Enduring power of attorney does not confer authority until attorney accepts appointment

Insert after section 20 (3):

(4)

To avoid doubt, this section extends to substitute attorneys.

[8]Section 33 Reviewable powers of attorney

Insert “(including a revocation of an enduring power of attorney)” after “enduring power of attorney” in section 33 (2).

[9]Section 33 (4)

Insert “or revocation” after “making” wherever occurring.

[10]Section 34 Referral of application to different review tribunal

Insert “or a revocation of an enduring power of attorney” after “enduring power of attorney” in section 34 (1).

[11]Section 34 (2) (a)

Insert “or revocation of enduring power of attorney” after “enduring power of attorney”.

[12]Section 35 Who are interested persons and parties in relation to applications

Insert “(including an attorney whose appointment has been purportedly revoked)” after “an attorney” in section 35 (1) (a).

[13]Sections 36 (1) and (2) and 37 (1) and (3)

Insert “, revocation” after “making” wherever occurring.

[14]Section 36 Interested persons may apply for review

Insert after section 36 (3):

(3A)

A review tribunal may make either or both of the following orders with respect to the revocation of a power of attorney:

• (a)

  an order declaring that the principal did or did not have mental capacity to revoke a power of attorney,

• (b)

  an order declaring that the power of attorney remains valid (either in whole or in part) if the tribunal is satisfied:

  • (i)

    the principal did not have the capacity necessary to revoke it, or

  • (ii)

    the revocation is invalid for any other reason, for example, the principal was induced to make the revocation by dishonesty or undue influence.

[15]Section 45A

Insert after section 45:

45AAppointment of substitute attorneys(1)

A principal may appoint a person as a substitute attorney for a specified person who is appointed by the principal as an attorney (the specified attorney).

(2)

The appointment of a substitute attorney may be made by expressly including the appointment in the instrument creating the power of attorney.

(3)

The principal may appoint one or more substitute attorneys.

(4)

A substitute attorney may act as attorney under the power of attorney during a vacancy in the office of the specified attorney or a vacancy of a kind specified in the instrument creating the power of attorney.

[16]Section 46 Effect of vacation of office of joint and several attorneys

Insert after section 46 (1):

(1A)

However, such a power of attorney is not terminated if:

• (a)

  the power of attorney provides otherwise, and

• (b)

  at least one of the attorneys or a substitute attorney remains in office.

[17]Schedule 2 Form for prescribed power of attorney

Omit the Schedule.

[18]Schedule 5 Savings, transitional and other provisions

Omit clause 1 (1). Insert instead:

(1)

The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.

[19]Schedule 5, Part 4

Insert after clause 4:

Part 4Provisions consequent on Powers of Attorney Amendment Act 20135Definition

In this Part, the amending Act means the Powers of Attorney Amendment Act 2013.

6Replacement of prescribed form for prescribed power of attorney

The substitution of section 8 and the repeal of Schedule 2 by the amending Act does not:

• (a)

  confer any additional authority on an attorney under a power of attorney that was a prescribed power of attorney in force immediately before the commencement of that substitution and repeal (an existing authority), or

• (b)

  remove any authority conferred on a principal by an existing authority, or

• (c)

  otherwise affect the continued operation of an existing authority.

7Review of revocations of existing powers of attorney by Guardianship Tribunal

The amendments made by Schedule 1 [8]–[14] to the amending Act extend to the review of revocations of powers of attorney created by an instrument executed before the commencement of those amendments.

8Authority of substitute attorneys under enduring powers of attorney

Section 20 (4) extends to any enduring power of attorney created by an instrument executed before the insertion of that subsection.

9Existing appointments of substitute attorneys

The insertion of section 45A by the amending Act does not affect the validity of any appointment of a substitute attorney made before the insertion of that section.

10Vacation of office by joint attorneys

The amendment of section 46 by the amending Act does not apply in relation to a power of attorney created by an instrument executed before that amendment.