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POWERS OF ATTORNEY REGULATION 2007 (NO 8 OF 2007)
2007
LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
POWERS OF ATTORNEY
REGULATION 2007
EXPLANATORY
STATEMENT
Circulated by authority of
Simon Corbell MLA
Attorney General
The Powers of Attorney Act 2006 (the Act) is to commence operation
on 30 May 2007. The Act provides for the Minister to approve forms
for the Act.
In drafting forms of general and enduring powers of
attorney under the Act, it was found that it is necessary to make some minor
amendments to the Act before the forms may be approved by the Minister. Those
amendments correct some inconsistencies and do not involve change of policy. In
particular, amendments provide for reading some provisions by replacing the
expression ‘authorisation’ of an attorney with
‘appointment’ of an attorney in some provisions, and vice versa in
other provisions. Amendments also clarify that an enduring power of attorney
operates as a general power of attorney during the capacity of the principal
only in relation to property matters, and that the power of the public trustee
to examine an attorney’s books at the request of the public advocate is
discretionary.
Schedule 1 to the Powers of Attorney Regulation modifies
Chapter 20 (Transitional provisions) of the Act. The Regulation is made under
section 156(2) of the Act which enables a regulation to be made to modify
Chapter 20 to make provision in relation to anything that, in the
Executive’s opinion, is not, or is not adequately or appropriately, dealt
with in that chapter.
It is proposed to amend the Act in the near future
to formalise the amendments proposed in Schedule 1 to the Regulation. Until
that time, the Regulation will remain as a transitional arrangement.
NOTES ON CLAUSES
Clause 1 Name of Regulation
This clause explains
that the name of the Regulation is the Powers of Attorney
Regulation 2007.
Clause 2 Commencement
This clause explains that the Regulation will commence 30 May 2007.
This clause explains that schedule 1 to the Regulation will modify
chapter 20 (Transitional provisions) of the Powers of Attorney Act
2006
Schedule 1 Modification of Act, ch 20
(Transitional provisions)
Clause 1.1 New sections 156A to
156M
Clause 1.1 inserts new sections 156A to 156 M.
New section 156A provides that section 12 applies as if example 2 were
omitted. Section 12 defines ‘health care matter’ for which powers
may be given to an attorney under an enduring power of attorney. Example 2 of
this matter is “donations under the Transplantation and Anatomy Act
1978 by the principal to someone else”. This item appears to create
confusion in the mind of a reader when section 37 provides that “removal
of non-regenerative tissue from the principal while alive for donation to
someone else” to be a special health matter, that is, a matter for which
power cannot be given to an attorney. Donation of regenerative tissue of a
principal is not a special health matter, and the Act does not state that such
power cannot be given to an attorney.
New section 156B inserts section 13 heading to be “Appointment of attorneys” and replaces the heading “Authorisation of attorneys”.
New section 156C provides that section 13 applies as if ‘authorise’ were omitted and ‘appoint’ were substituted. It is considered that authorisation of an attorney to exercise power in relation to a thing follows the attorney’s appointment in a power of attorney, and that section 13 deals with appointment of attorneys.
New section 156D provides for reading section 15 by replacing ‘authorise’ with ‘appoint’. It also inserts a new heading ‘Appointment of attorneys by name or position’.
Section 21(1) provides that an attorney ‘authorised’ under a power of attorney cannot be a witness to the power of attorney. Section 21(2) provides that only one of the witnesses can be a relative of a person ‘authorised’ as attorney under the power of attorney. New section 156E provides for section 21(1) and (2) to apply as if ‘authorised’ were omitted, and ‘appointed’ were substituted.
Section 22(2) provides for a witness certificate when a power of attorney
is signed on behalf of the principal at the principal’s direction.
Paragraph 22(2)(d) provides for a witness to certify that the principal
appeared to understand the nature and effect of making the power of attorney at
that time the principal signed it. New section 156F provides for applying this
statement to relate to the time the principal gave the direction to sign the
power of attorney. A section 22(2) certificate is not needed when the principal
himself or herself signs the power of attorney. A section 22(1) certificate
applies in that event.
Provisions under Part 3.3 are about authorising 2 or more attorneys.
Part 3.1 contains provisions for appointing an attorney or attorneys. New
section 156G provides for reading the heading of Part 3.3 as if
‘Appointment’ were omitted and ‘Authorisation’
substituted.
New section 156H Appointment of 2 or more attorneys under
power of attorney
Section 25 is in Part 3.3. New section 156H
provides for applying section 25 heading as if ‘Appointment’ were
omitted and ‘Authorisation’ substituted.
New section 156I How does enduring power of attorney operate while principal has capacity?
Section 31 provides for the operation of an enduring power of attorney as a general power of attorney while the principal has decision-making capacity. New section 156I provides for applying this section as if it provides for such operation only in relation to property matters.
New section 156J Obligation of attorneys to keep interested people informed
New section 156J provides for applying section 43(1) as if ‘authorisation’ were omitted and ‘appointment’ were substituted.
New section 156K Resignation of attorney’s authorisation under power of attorney
New section 156K provides for applying section 53 as if ‘authorisation’ were omitted and ‘appointment’ were substituted.
New section 156L provides for applying the heading of section 83 to read
as “Assistance by public trustee”.
New section 156M provides for applying section 83(3) as if the public trustee may, if asked by the public advocate, assist the public advocate by examining and reporting on the books, accounts or other records of an attorney under an enduring power of attorney. This section in its current form makes this function mandatory for the public trustee. It is not appropriate to compel an administrative agency of the government to act at the request of another administrative agency. It is expected that government administrative agencies will enter into appropriate arrangements, without being forced to act in relation to each other.
Section 83(2) makes a similar obligation on the public trustee mandatory if
the guardianship tribunal makes the request.