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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Powers of Attorney Bill 2003
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 When is a person incommunicate? 4
5 Vacancy in office of attorney 4
6 Application of Act 5
7 Application of general law to powers of attorney 6
Part 2 Prescribed powers of attorney
8 Creation of prescribed power of attorney 7
9 Powers conferred by prescribed power of attorney 7
10 Prescribed power of attorney does not confer authority to
act as trustee 7
11 Prescribed power of attorney does not generally confer
authority to give gifts 7
Powers of Attorney Bill 2003
Contents
Page
12 Prescribed power of attorney does not generally confer
authority to confer benefits on attorneys 8
13 Prescribed power of attorney does not generally confer
authority to confer benefits on third parties 8
14 Regulations may amend Schedules 2 and 3 8
Part 3 Irrevocable powers of attorney
15 Irrevocable powers of attorney 10
16 Effect of irrevocable powers of attorney 10
Part 4 Incapacity and enduring powers of attorney
Division 1 Initial and supervening mental incapacity
17 Initial mental incapacity 11
18 Supervening mental incapacity does not affect validity
of acts principal understands 11
Division 2 Enduring powers of attorney
19 Creation of enduring power of attorney 11
20 Enduring power of attorney does not confer authority until
attorney accepts appointment 12
21 Effect of enduring power of attorney 13
22 Effect of ademptions of testamentary gifts by attorney
under enduring power of attorney 13
23 Supreme Court may make orders confirming or varying
operation of section 22 14
24 Effect of disposal of home shared by spouses under
enduring power of attorney in cases of intestacy 15
25 Recognition of enduring powers of attorney made in
other States and Territories 16
Part 5 Review of powers of attorney
Division 1 General
26 Review tribunals 18
27 Concurrent jurisdiction of review tribunals 18
Division 2 Termination of irrevocable powers of attorney
28 Supreme Court may order the termination of irrevocable
power of attorney 18
Division 3 Confirmation of powers conferred when
principal mentally incapacitated
29 Supreme Court may make orders confirming powers
understood by principal 19
Contents page 2
Powers of Attorney Bill 2003
Contents
Page
30 Supreme Court may make orders confirming powers
subsequently affirmed by principal 19
31 Supreme Court may make orders confirming powers
in best interests of principal 19
32 Effect of orders made by Supreme Court under this
Division 20
Division 4 Review of enduring powers of attorney and
other powers
33 Reviewable powers of attorney 20
34 Referral of application to different review tribunal 21
35 Who are interested persons and parties in relation to
applications 21
36 Interested persons may apply for review 22
37 Review tribunal may treat certain applications for review
of power of attorney as application for management order 25
38 Advice or directions concerning reviewable powers of
attorney 26
Division 5 Reference of questions of law
39 References of questions of law to Supreme Court by
Guardianship Tribunal 26
Division 6 Appeals from decisions of Guardianship
Tribunal
40 Appeals to the Supreme Court 27
41 Appeals to ADT 28
Division 7 Procedure in relation to incommunicate
principals
42 Procedure where principal incommunicate 28
Part 6 Powers of attorney generally
Division 1 General provisions
43 Attorney may execute instruments and do other things in
own name 29
44 Proof of powers of attorney 29
45 Delegation of power of attorney 30
Division 2 Termination and suspension of powers of
attorney
46 Effect of vacation of office of joint and several attorneys 30
47 Attorney entitled to rely on power of attorney if unaware of
termination or suspension of power 30
Contents page 3
Powers of Attorney Bill 2003
Contents
Page
48 Certain third parties entitled to rely on acts done under
terminated or suspended powers of attorney 30
49 Attorney acting with knowledge of termination or
suspension of power 31
50 Application of section 76 of Protected Estates Act 1983 31
Division 3 Registration of powers of attorney
51 Powers of attorney may be registered 31
52 Powers of attorney to be registered for dealings
affecting land 32
Part 7 Miscellaneous
53 Regulations 33
54 Nature of proceedings for offences 33
55 Amendment of Acts and regulation 33
56 Savings, transitional and other provisions 33
57 Review of Act 33
Schedules
1 Repealed provisions of Conveyancing Act 1919
with continuing operation 34
2 Form for prescribed power of attorney 45
3 Prescribed expressions and authorisations for
prescribed powers of attorney 49
4 Amendment of Acts and regulation 52
5 Savings, transitional and other provisions 55
Contents page 4
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2003
New South Wales
Powers of Attorney Bill 2003
Act No , 2003
An Act to consolidate and revise the legislation relating to powers of attorney;
to make consequential amendments to the Conveyancing Act 1919 and certain
other legislation; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Powers of Attorney Bill 2003
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Powers of Attorney Act 2003.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Definitions (cf 1919 No 6, ss 7 (1) and 158 (1) and (2))
(1) In this Act:
assurance includes a conveyance and a disposition made otherwise
than by will.
attorney, in relation to a power of attorney, means a person to whom
the power is given.
bankruptcy means any act or proceeding in law having effects or
results similar to those of bankruptcy, and includes the winding up
of a company under the Corporations Act 2001 of the
Commonwealth.
conveyance includes any assignment, appointment, lease,
settlement or other assurance by deed of any property.
dealing has the same meaning as it has in the Real Property
Act 1900.
deed, in relation to land under the provisions of the Real Property
Act 1900, includes a dealing having the effect of a deed under that
Act.
disposition includes:
(a) a conveyance, and
(b) an acknowledgment under section 83 of the Wills, Probate
and Administration Act 1898, and
(c) a vesting instrument, declaration of trust, disclaimer, release
and every other assurance of property by any instrument
except a will, and
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Powers of Attorney Bill 2003 Clause 3
Preliminary Part 1
(d) a release, devise, bequest or an appointment of property
contained in a will.
enduring power of attorney--see section 19 (1).
exercise a function includes perform a duty.
function includes a power, authority or duty.
Guardianship Tribunal means the Guardianship Tribunal
constituted under the Guardianship Act 1987.
incommunicate--see section 4.
instrument includes a deed.
irrevocable power of attorney--see section 15.
prescribed form--see section 8.
prescribed power of attorney--see section 8.
principal, in relation to a power of attorney, means the person
giving the power.
property includes:
(a) real and personal property, and
(b) any estate or interest in any real or personal property, and
(c) any debt, thing in action or other right or interest.
registered means registered as referred to in section 51.
review tribunal--see section 26.
third party, in relation to a power of attorney, means a person other
than the principal or an attorney on which a power is conferred by
the power of attorney.
vacancy in office of an attorney--see section 5.
valuable consideration includes marriage but does not include a
nominal consideration, even if it has some value.
will includes codicil.
(2) A power of attorney does not become a different power of attorney
if an attorney appointed by the power is lawfully replaced by a
different attorney, the exercise of a power conferred by it is lawfully
delegated or a sub-attorney is lawfully appointed to exercise a
power under it.
Page 3
Clause 4 Powers of Attorney Bill 2003
Part 1 Preliminary
(3) A reference in this Act to a suspended power of attorney is a
reference to a power of attorney that is:
(a) suspended or restricted in operation by reason of mental
incapacity of the principal occurring after the execution of the
instrument creating the power, or
(b) suspended by operation of section 76 of the Protected Estates
Act 1983.
(4) Notes included in this Act (other than in Schedule 2) do not form
part of this Act.
Note. For the purposes of comparison, a number of provisions of this Act
contain bracketed notes in headings drawing attention ("cf") to equivalent or
comparable (though not necessarily identical) provisions of other Acts.
Abbreviations in the notes include:
1919 No 6: Conveyancing Act 1919 (as in force immediately before the
enactment of this Act),
1983 No 179: Protected Estates Act 1983 (as in force immediately before the
enactment of this Act).
4 When is a person incommunicate? (cf 1919 No 6, s 163D)
(1) For the purposes of this Act, a person is incommunicate if:
(a) the person suffers from any physical or mental incapacity
(whether of a temporary or permanent nature) that makes the
person unable:
(i) to understand communications respecting the person's
property or affairs, or
(ii) to express the person's intentions respecting the
person's property or affairs, or
(b) the person is unable to receive communications respecting the
person's property or affairs because the person cannot be
located or contacted.
(2) Without limiting subsection (1) (a), a person may be incommunicate
even if the incapacity concerned is induced by any drug or by
medical or other treatment.
5 Vacancy in office of attorney (cf 1919 No 6, s 163G (3))
For the purposes of this Act, there is a vacancy in the office of an
attorney if:
(a) the appointment of the attorney is revoked, or
(b) the attorney renounces the power, or
(c) the attorney dies, or
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Powers of Attorney Bill 2003 Clause 6
Preliminary Part 1
(d) the attorney becomes bankrupt, or
(e) where the attorney is a corporation, the corporation is
dissolved, or
(f) the attorney, by reason of any physical or mental incapacity,
ceases to have the capacity to continue to act as an attorney, or
(g) in such other circumstances as may be prescribed by the
regulations for the purposes of this paragraph.
6 Application of Act
(1) Act applies to instruments executed on or after
commencement
This Act applies to any power of attorney created (or purporting to
have been created) by an instrument executed on or after the
commencement of this section.
(2) Act does not generally apply to existing powers of attorney
This Act does not apply to any power of attorney created (or
purporting to have been created) by an instrument executed before
the commencement of this section, except as provided by
subsection (5).
(3) Repealed provisions of Conveyancing Act 1919 continue to
apply to existing powers of attorney
Subject to subsection (5), the provisions of Part 16 of, and
Schedule 7 to, the Conveyancing Act 1919 (and of any regulations
made under those provisions) as in force immediately before the
commencement of this section continue to apply to any power of
attorney created (or purporting to have been created) by an
instrument executed before that commencement despite the repeal
of those provisions by this Act.
(4) Schedule 1 contains copy of repealed provisions of
Conveyancing Act 1919
Schedule 1 contains a copy of the provisions of Part 16 of, and
Schedule 7 to, the Conveyancing Act 1919 as in force immediately
before the commencement of this section.
Note. The copy of the provisions of Part 16 of, and Schedule 7 to, the
Conveyancing Act 1919 contained in Schedule 1 does not include the
definitions for certain terms used in those provisions that are contained in
section 7 of the Conveyancing Act 1919. The regulations made under those
provisions have also not been included in the Schedule.
Page 5
Clause 7 Powers of Attorney Bill 2003
Part 1 Preliminary
(5) Certain provisions of this Act extend to existing powers of
attorney
The provisions of section 25 (Recognition of enduring powers of
attorney made in other States and Territories), Part 5 (Review of
powers of attorney) and Division 3 of Part 6 (Registration of powers
of attorney) extend to any power of attorney created (or purporting
to have been created) by an instrument executed before the
commencement of this section.
(6) Certain references in Part 5 extended to existing powers of
attorney
For the purposes of subsection (5):
(a) a reference in Part 5 to an enduring power of attorney is taken
to include a reference to a power of attorney that was a
protected power of attorney under Part 16 of the
Conveyancing Act 1919 immediately before its repeal, and
(b) a reference in Part 5 to an irrevocable power of attorney is
taken to include a reference to a power of attorney to which
section 160 of the Conveyancing Act 1919 applied
immediately before its repeal.
(7) Subsection (5) does not affect current proceedings
Nothing in subsection (5) affects the continued operation of the
provisions of the Conveyancing Act 1919 and regulations made
under that Act (as continued in force by subsection (3)) in relation
to any proceedings commenced, but not finally determined, under
those provisions before the commencement of this section.
7 Application of general law to powers of attorney
(1) This Act does not affect the operation of any principle or rule of the
common law or equity in relation to powers of attorney except to the
extent that this Act provides otherwise, whether expressly or by
necessary intention.
(2) This Act does not affect the operation of Part 3 of the Conveyancing
Act 1919 except to the extent that this Act provides otherwise,
whether expressly or by necessary intention.
Note. Part 3 of the Conveyancing Act 1919 contains general provisions relating
to the execution and effect of deeds.
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Powers of Attorney Bill 2003 Clause 8
Prescribed powers of attorney Part 2
Part 2 Prescribed powers of attorney
8 Creation of prescribed power of attorney (cf 1919 No 6, s 163B (1))
An instrument (whether or not under seal) that is in or to the effect
of the form set out in Schedule 2 (the prescribed form) and is duly
executed creates a prescribed power of attorney for the purposes of
this Act.
9 Powers conferred by prescribed power of attorney (cf 1919 No 6,
s 163B (1) and (3))
(1) Subject to this Act, a prescribed power of attorney confers on the
attorney the authority to do on behalf of the principal anything that
the principal may lawfully authorise an attorney to do.
(2) A prescribed power of attorney has effect subject to compliance
with any conditions or limitations specified in the instrument
creating the power.
10 Prescribed power of attorney does not confer authority to act as
trustee (cf 1919 No 6, s 163B (2) (a))
A prescribed power of attorney does not confer authority to exercise
any function as a trustee that is conferred or imposed on the
principal.
11 Prescribed power of attorney does not generally confer authority to
give gifts
(1) A prescribed power of attorney does not authorise an attorney to
give a gift of all or any property of the principal to any other person
unless the instrument creating the power expressly authorises the
giving of the gift.
Note. This subsection restates a rule of the general law. Accordingly, whether
a gift of all or any of the property of a principal is expressly authorised by a
prescribed power of attorney is to be determined by reference to the general
principles and rules of the common law and equity concerning the interpretation
of powers of attorney.
(2) Without limiting subsection (1), a prescribed power of attorney that
includes the prescribed expression for the purposes of this
subsection set out in Schedule 3 authorises an attorney to give the
kinds of gifts that are specified by that Schedule for that expression.
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Clause 12 Powers of Attorney Bill 2003
Part 2 Prescribed powers of attorney
12 Prescribed power of attorney does not generally confer authority to
confer benefits on attorneys (cf 1919 No 6, s 163B (2) (b))
(1) A prescribed power of attorney does not authorise an attorney to
execute an assurance or other document, or to do any other act, as a
result of which a benefit would be conferred on the attorney unless
the instrument creating the power expressly authorises the conferral
of the benefit.
Note. This subsection restates a rule of the general law. Accordingly, whether
the conferral of a benefit on an attorney is expressly authorised by a prescribed
power of attorney is to be determined by reference to the general principles and
rules of the common law and equity concerning the interpretation of powers of
attorney.
(2) Without limiting subsection (1), a prescribed power of attorney that
includes the prescribed expression for the purposes of this
subsection set out in Schedule 3 authorises an attorney to confer on
the attorney the kinds of benefits that are specified by that Schedule
for that expression.
13 Prescribed power of attorney does not generally confer authority to
confer benefits on third parties
(1) A prescribed power of attorney does not authorise an attorney to
execute an assurance or other document, or to do any other act, as a
result of which a benefit would be conferred on a third party unless
the instrument creating the power expressly authorises the conferral
of the benefit.
Note. This subsection restates a rule of the general law. Accordingly, whether
the conferral of a benefit on a third party is expressly authorised by a prescribed
power of attorney is to be determined by reference to the general principles and
rules of the common law and equity concerning the interpretation of powers of
attorney.
(2) Without limiting subsection (1), a prescribed power of attorney that
includes the prescribed expression for the purposes of this
subsection set out in Schedule 3 authorises an attorney to confer on
a third party the kinds of benefits that are specified by that Schedule
for that expression.
14 Regulations may amend Schedules 2 and 3
(1) The regulations may replace or amend Schedule 2 or 3 (or both).
(2) The amendment or repeal of the prescribed form in Schedule 2, 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:
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Powers of Attorney Bill 2003 Clause 14
Prescribed powers of attorney Part 2
(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.
Page 9
Clause 15 Powers of Attorney Bill 2003
Part 3 Irrevocable powers of attorney
Part 3 Irrevocable powers of attorney
15 Irrevocable powers of attorney (cf 1919 No 6, s 160 (1))
An instrument that creates a power of attorney creates an
irrevocable power of attorney for the purposes of this Act if:
(a) the instrument is expressed to be irrevocable, and
(b) the instrument is given for valuable consideration or is
expressed to be given for valuable consideration.
16 Effect of irrevocable powers of attorney (cf 1919 No 6, s 160 (1))
(1) The power conferred by an irrevocable power of attorney is not
revoked or otherwise terminated by, and remains effective despite,
the occurrence of any of the following:
(a) anything done by the principal without the concurrence of the
attorney,
(b) the bankruptcy of the principal,
(c) the mental incapacity of the principal,
(d) the principal becoming a person who is a temporary patient, a
continued treatment patient or a forensic patient within the
meaning of the Mental Health Act 1990, or a protected person
within the meaning of the Protected Estates Act 1983,
(e) the death of the principal,
(f) if the principal is a corporation, the dissolution of the
corporation.
(2) Subsection (1) has effect except to the extent that the instrument
creating the irrevocable power of attorney provides otherwise.
Note. Division 2 of Part 5 enables the Supreme Court to order the termination
of an irrevocable power of attorney in certain circumstances.
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Powers of Attorney Bill 2003 Clause 17
Incapacity and enduring powers of attorney Part 4
Part 4 Incapacity and enduring powers of attorney
Division 1 Initial and supervening mental incapacity
17 Initial mental incapacity (cf 1919 No 6, s 163E (1) and (2))
(1) Subject to this Act, a power of attorney is not ineffective only
because any act within the scope of the power is of such a nature that
it was beyond the understanding of the principal through mental
incapacity at the time the power is given.
(2) However, a power of attorney does not authorise an attorney to do
any such act unless it is authorised by or under this Act.
Note. Division 3 of Part 5 contains provisions that enable the Supreme Court to
confirm the operation of a power of attorney despite the mental incapacity of the
principal at the time the power is given.
18 Supervening mental incapacity does not affect validity of acts
principal understands (cf 1919 No 6, s 163F (1))
A power of attorney is effective to the extent that it concerns any act
within its scope that is of such a nature that is not beyond the
understanding of the principal through mental incapacity at the time
of the act.
Note. Division 2 makes provision for enduring powers of attorney, which can
have effect in relation to acts that are beyond the understanding of the principal
through mental incapacity at the time of the act.
Division 2 Enduring powers of attorney
19 Creation of enduring power of attorney (cf 1919 No 6, s 163F (2))
(1) An instrument that creates a power of attorney creates an enduring
power of attorney for the purposes of this Act if:
(a) the instrument is expressed to be given with the intention that
it will continue to be effective even if the principal lacks
capacity through loss of mental capacity after execution of the
instrument, and
(b) execution of the instrument by the principal is witnessed by a
person who is a prescribed witness (not being an attorney
under the power), and
(c) there is endorsed on, or annexed to, the instrument a
certificate by that person stating that:
(i) the person explained the effect of the instrument to the
principal before it was signed, and
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Clause 20 Powers of Attorney Bill 2003
Part 4 Incapacity and enduring powers of attorney
(ii) the principal appeared to understand the effect of the
power of attorney, and
(iii) the person is a prescribed witness, and
(iv) the person is not an attorney under the power of
attorney, and
(v) the person witnessed the signing of the power of
attorney by the principal.
(2) In this section:
prescribed witness means:
(a) a registrar of a Local Court, or
(b) a barrister or solicitor of a court of any State or Territory of
the Commonwealth, or
(c) a licensee under the Conveyancers Licensing Act 1995, or an
employee of the Public Trustee or a trustee company within
the meaning of the Trustee Companies Act 1964, who has
successfully completed a course of study approved by the
Minister, by order published in the Gazette, for the purposes
of this paragraph, or
(d) a legal practitioner duly qualified in a country other than
Australia, instructed and employed independently of any
legal practitioner appointed as an attorney under the
instrument, or
(e) any other person (or person belonging to a class of persons)
prescribed by the regulations for the purposes of this
paragraph.
20 Enduring power of attorney does not confer authority until attorney
accepts appointment
(1) An enduring power of attorney does not operate to confer any
authority on an attorney until the attorney has accepted the
appointment by signing the instrument creating the power.
(2) If more than one attorney is appointed by an enduring power of
attorney, the power of attorney operates to confer authority only in
relation to such of the attorneys who accept their appointments as
provided by subsection (1).
(3) An attorney may accept the appointment at the time the instrument
creating the enduring power of attorney is executed or at any time
after it is executed.
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Powers of Attorney Bill 2003 Clause 21
Incapacity and enduring powers of attorney Part 4
21 Effect of enduring power of attorney (cf 1919 No 6, s 163F (2), (3) and (4))
(1) Subject to this Act, an act done by an attorney that is within the
scope of the power conferred by an enduring power of attorney and
that is of such a nature that it is beyond the understanding of the
principal through mental incapacity at the time of the act is as
effective as it would have been had the principal understood the
nature of the act at that time.
(2) This section does not save a power of attorney from being or
becoming ineffective by reason of any matter other than mental
incapacity of the principal arising after the execution of the
instrument creating the power.
(3) This section applies only if and to the extent that a contrary intention
is not expressed in the instrument creating the power and has effect
subject to the terms of the instrument creating the power.
22 Effect of ademptions of testamentary gifts by attorney under
enduring power of attorney (cf 1983 No 179, s 48)
(1) Any person who is named as a beneficiary (a named beneficiary)
under the will of a deceased principal who executed an enduring
power of attorney has the same interest in any surplus money or
other property arising from any sale, mortgage, charge or
disposition of any property or other dealing with property by the
attorney under the power of attorney as the named beneficiary
would have had in the property the subject of the sale, mortgage,
charge, disposition or dealing, if no sale, mortgage, charge,
disposition or dealing had been made.
(2) The surplus money or other property arising as referred to in
subsection (1) is taken to be of the same nature as the property sold,
mortgaged, charged, disposed of or dealt with.
(3) Except as provided by subsection (4), money received for equality
of partition and exchange, and all fines, premiums and sums of
money received on the grant or renewal of a lease where the
property the subject of the partition, exchange, or lease was real
estate of a deceased principal are to be considered as real estate.
(4) Fines, premiums and sums of money received on the grant or
renewal of leases of property of which the deceased principal was
tenant for life are to be considered as the personal estate of the
deceased principal.
(5) This section has effect subject to any order of the Supreme Court
made under section 23.
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Clause 23 Powers of Attorney Bill 2003
Part 4 Incapacity and enduring powers of attorney
(6) A person is named as a beneficiary under a will for the purposes of
this section if:
(a) the person is referred to by name in the will as being a
beneficiary, or
(b) the person answers a description of a beneficiary, or belongs
to a class of persons specified as beneficiaries, under the will.
(7) This section does not apply to any person to whom section 48 of the
Protected Estates Act 1983 applies.
23 Supreme Court may make orders confirming or varying operation of
section 22
(1) On the application of a named beneficiary referred to in section 22
(1) or such other person as the Supreme Court considers has a proper
interest in the matter, the Supreme Court may:
(a) make such orders and direct such conveyances, deeds and
things to be executed and done as it thinks fit in order to give
effect to section 22, or
(b) if it considers that the operation of section 22 (1) and (2)
would result in one or more named beneficiaries gaining an
unjust and disproportionate advantage, or suffering an unjust
and disproportionate disadvantage, of the kind not
contemplated by the will of the deceased principal--make
such other orders as the Court thinks fit to ensure that no
named beneficiary gains such an advantage or suffers such a
disadvantage.
(2) An order made by the Supreme Court under subsection (1) (b):
(a) may provide that it has effect as if it had been made by a
codicil to the will of the deceased principal executed
immediately before his or her death, and
(b) has effect despite anything to the contrary in section 22.
(3) An application under subsection (1) must be made within 6 months
from the date of the grant or resealing in this State of probate of the
will or letters of administration unless the Supreme Court, after
hearing such of the persons affected as the Supreme Court thinks
necessary, extends the time for making the application.
(4) An extension of time granted under subsection (3) may be granted:
(a) on such conditions as the Supreme Court thinks fit, and
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Powers of Attorney Bill 2003 Clause 24
Incapacity and enduring powers of attorney Part 4
(b) whether or not the time for making an application under this
section has expired.
24 Effect of disposal of home shared by spouses under enduring power
of attorney in cases of intestacy
(1) This section applies to a spouse of a principal (the interested
spouse) under an enduring power of attorney who dies intestate (the
deceased principal) leaving the spouse and issue (within the
meaning of section 61D of the Wills, Probate and Administration
Act 1898), but only if:
(a) the attorney under the power of attorney sold or otherwise
disposed of the principal's interest in a dwelling house (the
former shared home) that was occupied by the deceased
principal and deceased principal's spouse as their, or the
spouse's, only or principal residence at the time of the sale or
disposal, and
(b) the spouse would have had the right to require the
administrator of the deceased principal's estate to hold that
interest in the former shared home in trust for the spouse
under section 61D of the Wills, Probate and Administration
Act 1898 if:
(i) the interest had not been sold or otherwise disposed of,
and
(ii) the former shared home had continued to be their, or the
spouse's, only or principal residence at the time of the
deceased principal's death, and
(c) the deceased principal did not have an interest in another
dwelling house that was occupied by the deceased principal
and the spouse as their, or the spouse's, only or principal
residence at the time of the deceased principal's death in
respect of which the spouse has a right under section 61D of
the Wills, Probate and Administration Act 1898 to require the
administrator of the deceased principal's estate to hold that
interest in trust for the spouse.
(2) For the purposes of subsection (3):
the disposal value of the interest in a former shared home of an
interested spouse is the amount for which the interest in the shared
home was sold or otherwise disposed of under the power of
attorney.
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Clause 25 Powers of Attorney Bill 2003
Part 4 Incapacity and enduring powers of attorney
the shortfall is any amount by which the value of the share of the
deceased principal's estate to which an interested spouse would, but
for this subsection, have been entitled under section 61B (3) (b) and
(c) of the Wills, Probate and Administration Act 1898 is less than
the disposal value of the spouse's interest in the former shared
home.
(3) If the value of the deceased principal's estate after excluding the
value of household chattels (the nett value of the estate):
(a) is greater than the disposal value of the spouse's interest in the
former shared home:
(i) the share of the spouse under section 61B (3) of that Act
is taken to be increased by the amount of the shortfall
up to a maximum of the nett value of the estate, and
(ii) the share of the issue under section 61B (3) of that Act
is taken to be correspondingly reduced, or
(b) is equal to or less than the disposal value of the spouse's
interest in the former shared home:
(i) the share of the spouse under section 61B (3) of that Act
is taken to be the value of the whole estate (including
household chattels), and
(ii) the issue are taken not to be entitled to a share of the
deceased principal's estate under section 61B (3) of that
Act.
(4) Nothing in this section affects the operation of section 61B (3) of the
Wills, Probate and Administration Act 1898 in relation to an
interested spouse if the value of the share of the deceased principal's
estate to which the spouse is entitled under section 61B (3) (b) and
(c) of that Act is equal to or greater than the disposal value of the
spouse's interest in the former shared home.
(5) This section applies despite anything to the contrary in the Wills,
Probate and Administration Act 1898.
25 Recognition of enduring powers of attorney made in other States
and Territories
(1) An interstate enduring power of attorney has effect in this State as
if it were an enduring power of attorney made under, and in
compliance with, this Act, but only to the extent that the powers it
gives under the law of the State or Territory in which it was made
could validly have been given by an enduring power of attorney
made under this Act.
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Incapacity and enduring powers of attorney Part 4
(2) In particular, an interstate enduring power of attorney to which
subsection (1) applies:
(a) has effect in this State subject to any limitations on the power
that apply to it under the law of the State or Territory in which
it was made, and
(b) does not operate to confer any power on an attorney in this
State that cannot be conferred on an attorney under an
enduring power of attorney made in this State.
(3) Subsection (1) does not apply to any power of attorney (or class of
powers of attorney) prescribed by the regulations.
(4) A document signed by a qualified interstate legal practitioner that
certifies that an interstate enduring power of attorney was made in
accordance with the formal requirements of the law of the State or
Territory in which it was made is admissible in any proceedings
concerning that power and is prima facie evidence of the matter so
certified.
(5) In this section:
interstate enduring power of attorney means a power of attorney
made in another State or a Territory that, under the law of that State
or Territory, has effect in that State or Territory as a valid power of
attorney even if the principal loses capacity through mental
incapacity after the execution of the instrument creating the power
of attorney.
qualified interstate legal practitioner, in relation to an interstate
enduring power of attorney, means an individual:
(a) who has been admitted to legal practice in the State or
Territory in which the power of attorney was made, and
(b) who holds a certificate or other form of authorisation that
confers an authority to practise in that State or Territory that
corresponds to the authority conferred by a practising
certificate issued under Part 3 of the Legal Profession
Act 1987, and
(c) who practises in that State or Territory.
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Clause 26 Powers of Attorney Bill 2003
Part 5 Review of powers of attorney
Part 5 Review of powers of attorney
Division 1 General
26 Review tribunals
Each of the following is a review tribunal for the purposes of this
Part:
(a) the Guardianship Tribunal,
(b) the Supreme Court.
27 Concurrent jurisdiction of review tribunals
(1) If a provision of this Part confers a function on any review tribunal,
the jurisdiction to exercise that function is conferred on each review
tribunal concurrently.
(2) A person cannot make an application to a review tribunal for the
exercise of a function conferred on the tribunal by this Part if the
person has already applied to another review tribunal for the
exercise of the same function in respect of the same (or substantially
the same) matter.
(3) However, subsection (2) does not prevent a person from making an
application to a review tribunal for the exercise of a function under
this Part if the earlier application for the exercise of the same
function has been withdrawn with the approval of the review
tribunal in which the application was made.
(4) Subsections (1)-(3) do not apply to a provision of this Part that
confers a function on the Guardianship Tribunal or the Supreme
Court expressly.
Division 2 Termination of irrevocable powers of attorney
28 Supreme Court may order the termination of irrevocable power of
attorney (cf 1919 No 6, s 160 (2))
The Supreme Court may order that an irrevocable power of attorney
is terminated and may order that the instrument creating the power
be delivered up for cancellation if the Court considers that:
(a) the objects of the power of attorney have been carried out, or
(b) the objects of the power of attorney have become incapable of
being carried out, or
(c) the power of attorney is otherwise exhausted.
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Review of powers of attorney Part 5
Division 3 Confirmation of powers conferred when principal
mentally incapacitated
29 Supreme Court may make orders confirming powers understood by
principal (cf 1919 No 6, s 163E (3))
The Supreme Court may, on the application of a principal under a
power of attorney, confirm (whether in whole or in part) any power
to do an act under the power of attorney if it appears to the Court that
the nature of the act was not beyond the understanding of the
principal through mental incapacity at the time when the power was
given.
30 Supreme Court may make orders confirming powers subsequently
affirmed by principal (cf 1919 No 6, s 163E (4))
The Supreme Court may, on the application of a principal under a
power of attorney, confirm (whether in whole or in part) any power
to do an act under the power of attorney that was beyond the
understanding of the principal through mental incapacity at the time
the power was given to the extent that it appears to the Court that:
(a) the principal has affirmed the power before or during the
proceedings on the application, and
(b) the principal had sufficient mental capacity to affirm the
power at the time the affirmation was made.
31 Supreme Court may make orders confirming powers in best
interests of principal (cf 1919 No 6, s 163E (5) and (7))
(1) The Supreme Court may, on the application of a principal under a
power of attorney (whether or not an enduring power of attorney),
confirm (whether in whole or in part) any power to do an act under
the power of attorney if it appears to the Court that:
(a) the principal is incapable of affirming the power because:
(i) the principal lacks capacity by reason of the
continuation of mental incapacity that affected the
principal when the principal gave the power, or
(ii) the principal is incommunicate, and
(b) it is for the benefit of the principal that the power be
confirmed in whole or in part.
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(2) Subsection (1):
(a) applies only if and to the extent that a contrary intention is not
expressed in the instrument creating the power of attorney,
and
(b) has effect subject to the terms of the instrument creating the
power of attorney.
32 Effect of orders made by Supreme Court under this Division (cf 1919
No 6, s 163E (6))
If the Supreme Court makes an order under this Division confirming
a power of an attorney (whether in whole or in part), any act done
by the attorney after the order takes effect that is within the scope of
the power is, to the extent it is confirmed, taken to be as good for all
purposes and between all persons as if, at the time when the order
took effect, the principal were of full capacity and had in due form
confirmed the power of attorney to the extent of the order of
confirmation.
Division 4 Review of enduring powers of attorney and other
powers
33 Reviewable powers of attorney (cf 1919 No 6, s 163G (1))
(1) A power of attorney is a reviewable power of attorney for the
purposes of an application under this Division if the review tribunal
to which the application is to be made has jurisdiction to deal with
the application as provided by this section.
(2) Both the Guardianship Tribunal and the Supreme Court have
jurisdiction to deal with an application under this Division in respect
of an enduring power of attorney.
(3) The Supreme Court (but not the Guardianship Tribunal) also has
jurisdiction to deal with an application under this Division in respect
of any other power of attorney given by a principal who is
incommunicate for the time being.
(4) To remove any doubt, references in this Division to a reviewable
power of attorney extend to a document purporting to be a
reviewable power of attorney and to the making of a power of
attorney extend to the purported making of a power of attorney.
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Powers of Attorney Bill 2003 Clause 34
Review of powers of attorney Part 5
34 Referral of application to different review tribunal
(1) Whether or not on its own initiative, the Supreme Court may refer
an application made to it under this Division in respect of an
enduring power of attorney to the Guardianship Tribunal and the
Guardianship Tribunal may refer such an application made to it to
the Supreme Court.
(2) Without limiting the matters that a review tribunal may take into
account in deciding whether or not to refer such an application, the
review tribunal may take into account any one or more of the
following matters:
(a) whether the application relates to the effect of the enduring
power of attorney on third parties,
(b) whether the application is likely to raise for consideration
complex or novel legal issues that the Supreme Court is better
suited to determine,
(c) any other matter it considers relevant.
35 Who are interested persons and parties in relation to applications
(1) Interested persons who may make applications
Each of the following persons is an interested person in relation to
the making of applications under this Division in respect of a
reviewable power of attorney:
(a) an attorney,
(b) the principal,
(c) any person who is:
(i) a guardian of the principal (whether under the
Guardianship Act 1987 or any other Act or law), or
(ii) an enduring guardian of the principal under the
Guardianship Act 1987,
(d) any other person who, in the opinion of the review tribunal,
has a proper interest in the proceedings or a genuine concern
for the welfare of the principal.
(2) Parties to proceedings in respect of an application
Each of the following persons is a party to an application in respect
of a reviewable power of attorney:
(a) the applicant,
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Clause 36 Powers of Attorney Bill 2003
Part 5 Review of powers of attorney
(b) each attorney under the power (if the attorney is not the
applicant),
(c) the principal (if the principal is not the applicant),
(d) any other person that the review tribunal concerned has joined
as a party under subsection (3).
(3) Joinder of parties
A review tribunal may, on its own initiative or on the application of
an interested person, decide to join, as a party to any proceedings
before the tribunal under this Division, any person who, in the
opinion of the tribunal, should be a party to the proceedings
(whether because of the person's concern for the welfare of the
principal or for any other reason).
(4) Application of section 51A (2) of Guardianship Act 1987
Section 51A (2) of the Guardianship Act 1987 applies to the joinder
of a party under subsection (3) in the same way as it applies to the
joinder of a party in proceedings under that Act.
Note. Section 51A (2) of the Guardianship Act 1987 provides that the persons
who may constitute the Guardianship Tribunal for the purposes of joinder of
parties under that section are the President and Deputy President of the
Tribunal and such other members of the Tribunal as the President may
nominate in writing for the purposes of that section.
(5) Applicant to be notified of joinder
If a review tribunal joins a person as a party to any proceedings, the
tribunal must, as soon as practicable, notify the applicant (or cause
the applicant to be notified) accordingly.
36 Interested persons may apply for review (cf 1919 No 6, s 163G)
(1) Tribunal may review making or operation and effect of power
A review tribunal may, on the application of an interested person,
decide to review the making or the operation and effect of a
reviewable power of attorney or not to carry out such a review.
(2) As a consequence of reviewing the making or operation and effect
of a reviewable power of attorney, a review tribunal may decide
whether or not to make an order under this section.
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Review of powers of attorney Part 5
(3) Orders relating to making of power of attorney
A review tribunal may make either or both of the following orders
with respect to the making of a power of attorney:
(a) an order declaring that the principal did or did not have mental
capacity to make a valid power of attorney,
(b) an order declaring that the power of attorney is invalid (either
in whole or in part) if the tribunal is satisfied:
(i) the principal did not have the capacity necessary to
make it, or
(ii) the power of attorney did not comply with the other
requirements of this Act applicable to it, or
(iii) the power of attorney is invalid for any other reason, for
example, the principal was induced to make it by
dishonesty or undue influence.
(4) Orders relating to operation and effect of power
A review tribunal may, if satisfied that it would be in the best
interests of the principal to do so or that it would better reflect the
wishes of the principal, make any one or more of the following
orders relating to the operation and effect of a power of attorney:
(a) an order varying a term of, or a power conferred by, the power
of attorney,
(b) an order removing a person from office as an attorney,
(c) an order appointing a substitute attorney to replace an
attorney who has been removed from office by a review
tribunal or who otherwise vacates the office,
(d) an order reinstating a power of attorney that has lapsed by
reason of any vacancy in the office of an attorney and
appointing a substitute attorney to replace the attorney who
vacated office,
(e) an order directing or requiring any one or more of the
following:
(i) that an attorney furnish accounts and other information
to the tribunal or to a person nominated by the tribunal,
(ii) that an attorney lodge with the tribunal a copy of all
records and accounts kept by the attorney of dealings
and transactions made by the attorney under the power,
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Clause 36 Powers of Attorney Bill 2003
Part 5 Review of powers of attorney
(iii) that those records and accounts be audited by an auditor
appointed by the tribunal and that a copy of the report
of the auditor be furnished to the tribunal,
(iv) that the attorney submit a plan of financial management
to the tribunal for approval,
(f) an order revoking all or part of the power of attorney,
(g) such other orders as the review tribunal thinks fit.
(5) Orders relating to mental capacity of principal
A review tribunal may make an order relating to the operation and
effect of a power of attorney declaring that the principal lacked or
lacks capacity because of mental incapacity at a specified time or
during a specified period or for the time being. An enduring power
of attorney can not be lawfully revoked by the principal while the
principal is declared to be incapable by such an order.
(6) Effect of order declaring mental incapacity for the time being
If a review tribunal makes an order under this section declaring that
a principal under a reviewable power of attorney lacks capacity
through mental incapacity for the time being, the principal is to be
taken, for the purposes of the operation of the power of attorney, to
lack such capacity for such period (if any) specified in the order or
until further order of the tribunal.
(7) Orders may be subject to terms and conditions
An order made under this section may be made subject to such terms
and conditions as the review tribunal thinks fit.
(8) Further orders relating to accounts and information
If a review tribunal makes an order under this section directing an
attorney to furnish accounts or other information, the tribunal may
decide to make further orders for:
(a) limiting the disclosure of accounts or other information by the
attorney, and
(b) inquiry and report on the conduct of the attorney.
(9) Order reinstating lapsed power of attorney may have
retrospective operation
If a review tribunal makes an order under this section reinstating a
power of attorney that has lapsed by reason of a vacancy in the
office of an attorney, the order may also direct that it has effect from
the time at which the power of attorney originally lapsed.
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Powers of Attorney Bill 2003 Clause 37
Review of powers of attorney Part 5
(10) Effect of order removing or appointing attorney or altering
power
The removal or appointment of an attorney, or the alteration or
revocation of a power of attorney, under this section has effect as if:
(a) it were done in due form by the principal, and
(b) the principal were of full capacity and were, to the extent
necessary, authorised to do the thing in question by the
instrument creating the power.
(11) Review tribunal may exercise functions despite instrument
A review tribunal may exercise a function under this section despite
anything to the contrary in the instrument creating the power.
(12) Section does not affect irrevocable powers of attorney
This section has effect subject to the provisions of Part 3
(Irrevocable powers of attorney).
37 Review tribunal may treat certain applications for review of power of
attorney as application for management order
(1) If, on a review of the making or operation and effect of a reviewable
power of attorney under section 36, the Guardianship Tribunal
decides not to make an order under that section in respect of the
power of attorney, it may (if it considers it appropriate in all the
circumstances to do so) decide to treat the application for the review
as an application for a financial management order under Part 3A
(Financial management) of the Guardianship Act 1987.
(2) If such a decision is made, the application is taken to be an
application for such a financial management order duly made in
respect of the principal under that power.
(3) If, on a review of the making or operation and effect of a reviewable
power of attorney under section 36, the Supreme Court decides not
to make an order under that section in respect of the power of
attorney, it may (if it considers it appropriate in all the
circumstances to do so) proceed instead as if an application for a
declaration and order under section 13 (Declaration and order where
person incapable of managing affairs) of the Protected Estates
Act 1983 had been duly made in respect of the principal under that
power.
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Clause 38 Powers of Attorney Bill 2003
Part 5 Review of powers of attorney
38 Advice or directions concerning reviewable powers of attorney
(1) An attorney under a reviewable power of attorney may apply for
advice or direction by a review tribunal on any matter relating to the
scope of the attorney's appointment or the exercise of any function
by the attorney under a reviewable power of attorney.
(2) In determining any such application, a review tribunal may decide
to:
(a) approve or disapprove of any act proposed to be done by the
attorney, or
(b) give such advice or direction as it considers appropriate, or
(c) vary the effect of the enduring power of attorney or make any
other order it could make in an application under section 36.
(3) No proceedings lie against an attorney under a reviewable power of
attorney for or on account of any act, matter or thing done or omitted
to be done by the attorney in good faith and in accordance with any
approval, advice or direction given under this section.
Division 5 Reference of questions of law
39 References of questions of law to Supreme Court by Guardianship
Tribunal
(1) If the Guardianship Tribunal is determining an application under
this Part, it may, on its own initiative or at the request of a party,
refer a question of law arising in the application to the Supreme
Court for the opinion of the Court.
(2) The Supreme Court has jurisdiction to hear and determine any
question of law referred to it under this section.
(3) If a question of law arising in any application to the Guardianship
Tribunal has been referred to the Supreme Court under this section,
the Tribunal is not:
(a) to give a decision in the application to which the question is
relevant while the reference is pending, or
(b) to proceed in a manner, or make a decision, that is
inconsistent with the opinion of the Supreme Court on the
question.
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Powers of Attorney Bill 2003 Clause 40
Review of powers of attorney Part 5
Division 6 Appeals from decisions of Guardianship Tribunal
40 Appeals to the Supreme Court
(1) A party to a proceeding under section 35 (3) or 36 before the
Guardianship Tribunal may appeal to the Supreme Court from any
decision of that Tribunal in that proceeding:
(a) as of right, on a question of law, or
(b) by leave of the Supreme Court, on any other question.
(2) A person who has appealed to the Administrative Decisions
Tribunal under section 41 against a decision of the Guardianship
Tribunal may not appeal to the Supreme Court under this section in
respect of the same decision. However, the person may appeal to the
Supreme Court under this section if the appeal under section 41 is
withdrawn with the approval of the Administrative Decisions
Tribunal for the purpose of enabling the Supreme Court to deal with
the matter.
(3) An appeal by a person under this section is to be instituted within
the period ending 28 days after the day on which the decision is
made.
(4) The Supreme Court shall hear and determine the appeal and may
make such orders as it thinks appropriate in the light of its decision.
(5) Without affecting the generality of subsection (4), the orders that
may be made by the Supreme Court on an appeal include:
(a) an order affirming or setting aside the decision of the
Guardianship Tribunal, and
(b) an order remitting the case to be heard and decided again by
the Guardianship Tribunal (either with or without the hearing
of further evidence) in accordance with the directions of the
Supreme Court.
(6) Subject to any interlocutory order made by the Supreme Court, an
appeal operates to stay the decision appealed against.
(7) The Guardianship Tribunal is not liable for any costs relating to:
(a) an order or decision of that Tribunal in respect of which an
appeal is made, or
(b) any such appeal.
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Clause 41 Powers of Attorney Bill 2003
Part 5 Review of powers of attorney
41 Appeals to ADT
(1) An appeal may be made to the Administrative Decisions Tribunal
against a decision of the Guardianship Tribunal under section 35 (3)
or 36.
(2) An appeal to the Administrative Decisions Tribunal under this
section may be made by a person who was a party to the proceedings
in which the decision of the Guardianship Tribunal was made.
(3) If any such person has appealed to the Supreme Court under section
40 against a decision of the Guardianship Tribunal, the person may
not appeal to the Administrative Decisions Tribunal under this
section in respect of the same decision. However, the person may
appeal to the Administrative Decisions Tribunal under this section
if the appeal under section 40 is withdrawn with the approval of the
Supreme Court for the purpose of enabling the Administrative
Decisions Tribunal to deal with the matter.
(4) An appeal under this section is an external appeal within the
meaning of the Administrative Decisions Tribunal Act 1997.
Division 7 Procedure in relation to incommunicate principals
42 Procedure where principal incommunicate (cf 1919 No 6, s 163H)
(1) If the principal under a power of attorney is incommunicate:
(a) proceedings under this Part by the principal:
(i) may be commenced and carried on as prescribed by
rules of court, or
(ii) subject to rules of court, may be commenced and
carried on as if the principal were mentally
incapacitated, and
(b) subject to rules of court, all persons are, in relation to the
proceedings, to be as nearly as may be in the like position in
law as if the principal were mentally incapacitated.
(2) Subsection (1) does not limit the rule-making powers conferred by
the Supreme Court Act 1970.
(3) A reference to rules of court in subsection (1) includes a reference
to rules of the Guardianship Tribunal made under section 75 of the
Guardianship Act 1987 in relation to proceedings in that Tribunal
brought under this Part.
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Powers of Attorney Bill 2003 Clause 43
Powers of attorney generally Part 6
Part 6 Powers of attorney generally
Division 1 General provisions
43 Attorney may execute instruments and do other things in own name
(cf 1919 No 6, s 159)
(1) An attorney under a power of attorney may, in the exercise of the
power:
(a) execute any assurance or instrument with the attorney's own
signature and, where sealing is required, with the attorney's
own seal, or
(b) do any other thing in the attorney's own name.
(2) An assurance or instrument executed, or thing done, in accordance
with subsection (1) is as effectual in law as if executed or done by
the attorney with the signature and seal or, as the case may be, in the
name, of the principal.
44 Proof of powers of attorney (cf 1919 No 6, s 163A)
(1) A document is a certified copy of an instrument for the purposes of
this section if:
(a) there is endorsed on the document a written certificate, to the
effect that the document is a true and complete copy of the
contents of the instrument of which it purports to be a copy,
by:
(i) the principal under the power of attorney created by the
instrument, or
(ii) a person (or person belonging to a class of persons)
prescribed by the regulations for the purposes of this
subsection, and
(b) each page of the document bears the signature of the person
who gives the certificate referred to in paragraph (a).
(2) A legible document that is a certified copy of an instrument creating
a power of attorney is evidence:
(a) as against the principal under the power of attorney of the
execution and contents of the instrument, and
(b) as against any other person of the contents of the instrument.
(3) Subsection (2) does not make a document better evidence than is the
instrument of the contents of which it purports to be a copy.
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Clause 45 Powers of Attorney Bill 2003
Part 6 Powers of attorney generally
(4) This section does not affect any other method of proving the
execution or contents of an instrument creating a power of attorney.
(5) A person must not give a certificate for the purposes of this section
knowing the certificate to be false.
Maximum penalty (subsection (5)): 5 years imprisonment.
45 Delegation of power of attorney (cf 1919 No 6, s 158 (3))
(1) An attorney under a power of attorney cannot appoint a substitute,
delegate or sub-attorney unless the instrument creating the power
expressly provides for the attorney to do so.
(2) Nothing in this section enables an attorney irrevocably to appoint a
substitute, delegate or sub-attorney unless the instrument creating
the power of attorney expressly provides for the attorney to do so.
Division 2 Termination and suspension of powers of
attorney
46 Effect of vacation of office of joint and several attorneys
(1) If a power of attorney appoints 2 or more persons as joint attorneys,
the power of attorney is terminated if the office of one or more of
the attorneys becomes vacant.
(2) If a power of attorney appoints 2 or more persons as attorneys either
severally or jointly and severally, a vacancy in the office of one or
more attorneys does not operate to terminate the power of attorney
in relation to the other attorneys.
47 Attorney entitled to rely on power of attorney if unaware of
termination or suspension of power (cf 1919 No 6, s 161)
If a power of attorney is terminated or suspended, an attorney who
does an act that would have been within the scope of the power
without knowing of the termination or suspension is entitled to rely
on the power of attorney in relation to that act in the same manner
and to the same extent as if the power had not been terminated or
suspended.
48 Certain third parties entitled to rely on acts done under terminated
or suspended powers of attorney (cf 1919 No 6, s 162)
(1) If a power of attorney is terminated or suspended, a third party who
deals or otherwise transacts in good faith with the attorney without
knowing of the termination or suspension is entitled to rely on the
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Powers of Attorney Bill 2003 Clause 49
Powers of attorney generally Part 6
power of attorney in relation to that dealing or transaction in the
same manner and to the same extent as if the power had not been
terminated or suspended.
(2) Subsection (1) does not entitle an attorney to rely on a power in
support of an act within the scope of the power done by the attorney
with notice of the termination or suspension of the power to the
extent that it concerns authority to do that act.
49 Attorney acting with knowledge of termination or suspension of
power (cf 1919 No 6, s 162A)
(1) An attorney under a power of attorney that is terminated must not do
any act or thing under the power of attorney if the attorney knows of
the termination at the time the attorney does the act or thing.
Maximum penalty: 5 years imprisonment.
(2) An attorney under a power of attorney must not do any act or thing
under the power of attorney where the authority to do that act or
thing has been suspended if the attorney knows of the suspension at
the time the attorney does the act or thing.
Maximum penalty: 5 years imprisonment.
50 Application of section 76 of Protected Estates Act 1983
Section 76 of the Protected Estates Act 1983 makes provision in
respect of powers of attorney made by principals who are subject to
management under that Act.
Note. Section 76 of the Protected Estates Act 1983 provides that a power of
attorney is:
(a) not terminated only because the estate of the principal has become
subject to management under that Act, and
(b) suspended while the estate of the principal is subject to management
under that Act.
Division 3 Registration of powers of attorney
51 Powers of attorney may be registered (cf 1919 No 6, s 163 (1) and (3))
(1) Any instrument executed before or after the commencement of this
Act that creates a power of attorney may be registered by the
Registrar-General in the General Register of Deeds kept under the
Conveyancing Act 1919.
(2) An instrument revoking a registered power of attorney may also be
registered by the Registrar-General in that Register.
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Clause 52 Powers of Attorney Bill 2003
Part 6 Powers of attorney generally
52 Powers of attorney to be registered for dealings affecting land (cf
1919 No 6, s 163 (2) and (4))
(1) A conveyance or other deed affecting land executed on or after
1 July 1920 under a power of attorney has no effect unless the
instrument creating the power has been registered.
Note. 1 July 1920 is the day on which the Conveyancing Act 1919 commenced.
(2) If the instrument is registered after the time when the conveyance or
other deed was executed, the conveyance or other deed has effect as
if the instrument had been registered before that time.
(3) In this section, deed includes any memorandum, dealing or other
instrument affecting land that is deemed by an Act to have effect as
a deed.
(4) This section does not apply to a lease for a term of 3 years or less.
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Powers of Attorney Bill 2003 Clause 53
Miscellaneous Part 7
Part 7 Miscellaneous
53 Regulations
(1) The Governor may make regulations, not inconsistent with this Act,
for or with respect to any matter that by this Act is required or
permitted to be prescribed or that is necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) A regulation may create an offence punishable by a penalty not
exceeding 25 penalty units.
54 Nature of proceedings for offences
(1) Subject to subsection (2), an offence under this Act is to be
prosecuted on indictment.
(2) Proceedings for an offence under the regulations may be dealt with
summarily before a Local Court.
55 Amendment of Acts and regulation
The Acts and regulation specified in Schedule 4 are amended as set
out in that Schedule.
56 Savings, transitional and other provisions
Schedule 5 has effect.
57 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period
of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House
of Parliament within 12 months after the end of the period of 5
years.
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Schedule 1 Repealed provisions of Conveyancing Act 1919 with continuing operation
Schedule 1 Repealed provisions of Conveyancing
Act 1919 with continuing operation
(Section 6 (4))
Part 16 Powers of attorney
Division 1 General
158 Definitions and application of Part
(1) In this Part:
attorney, in relation to a power of attorney, means an attorney under
the power.
commencement, in relation to the Conveyancing (Powers of
Attorney) Amendment Act 1983, means the commencement of
section 3 of, and Schedule 1 to, that Act.
power of attorney or power includes an authorised substitution,
delegation or appointment of sub-attorney.
principal, in relation to a power of attorney, means the person
giving the power.
(2) In sections 161, 162 and 162A, suspended, in relation to a power of
attorney, means:
(a) suspended or restricted in operation by reason of unsoundness
of mind of the principal occurring after the execution of the
instrument creating the power, or
(b) suspended by section 110A of the Mental Health Act 1958.
(3) This Part does not enable an attorney, without express authority,
irrevocably to appoint a substitute, delegate or sub-attorney.
(4) This Part extends to powers of attorney authorising, whether
expressly or in general terms, the execution of dealings under the
Real Property Act 1900.
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159 Execution etc under power
(1) An attorney under a power of attorney may, in the exercise of the
power:
(a) execute any assurance or instrument with his or her own
signature and, where sealing is required, with his or her own
seal, or
(b) do any other thing in his or her own name.
(2) An assurance or instrument executed, or thing done, in accordance
with subsection (1) is as effectual as if executed or done by the
attorney with the signature and seal or, as the case may be, in the
name, of the principal.
160 Irrevocable powers
(1) Where a power of attorney is, in the instrument creating the power,
expressed to be irrevocable and is, or in the instrument creating the
power is expressed to be, given for valuable consideration, the
power is not, except to the extent (if any) that the instrument
otherwise provides, revoked or otherwise terminated by, and
remains effective notwithstanding:
(a) anything done by the principal without the concurrence of the
attorney,
(b) bankruptcy of the principal,
(c) mental incapacity of the principal,
(d) the principal becoming a patient, a protected person or an
incapable person within the meaning of the Mental Health
Act 1958, or any other event happening whereby the property
or affairs of the principal becomes or become subject to care,
management, collection, administration, charge or control
under that Act,
(e) death of the principal,
(f) if the principal is a corporation, dissolution of the corporation.
(2) Where the objects of a power of attorney to which this section
applies have been carried out, or have become incapable of being
carried out, or a power of attorney to which this section applies is
otherwise exhausted, the Court may order that the power of attorney
terminate and may order that the instrument creating the power be
delivered up for cancellation.
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(3) This section does not apply to a power of attorney created by an
instrument executed before the commencement of the
Conveyancing (Powers of Attorney) Amendment Act 1983.
161 Termination etc--protection of attorney
(1) Where:
(a) an attorney under a power of attorney does an act within the
scope of the power, and
(b) at that time the attorney does not have notice that the power
has terminated or has been suspended,
the attorney shall be entitled to rely on the power, as against the
principal and any other person, notwithstanding any termination or
suspension of the power before the time of the act, in the same
manner and to the same extent as if the power had not terminated,
or had not been suspended, before the time of the act.
(2) This section applies only to an act done by an attorney after the
commencement of the Conveyancing (Powers of Attorney)
Amendment Act 1983.
162 Termination etc--protection of strangers
(1) Where:
(a) an attorney under a power of attorney does an act within the
scope of the power, professing to act on behalf of another,
(b) at the time of the act of the attorney or afterwards, a third
person:
(i) acts as a purchaser or incurs an obligation or otherwise
acts to his or her detriment in a transaction (with the
attorney or with any other person) which depends for its
validity or effect on the power not having terminated,
and not being suspended, at the time of the act of the
attorney, or
(ii) acts in reliance on a right, title or interest which so
depends, and
(c) at the time of the act of the third person he or she does not
have notice that, at the time of the act of the attorney, the
power had terminated, or was suspended so far as concerns
the authority of the attorney to do that act,
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Repealed provisions of Conveyancing Act 1919 with continuing operation Schedule 1
the third person and any person claiming under him or her shall be
entitled, as against the principal and the attorney and any other
person, to rely on the power notwithstanding any termination of the
power before the time of the act of the attorney, and notwithstanding
any suspension of the power at that time so far as concerns authority
to do that act, in the same manner and to the same extent as if the
power had not terminated before the time of the act of the attorney
or, as the case may be, were not under suspension at that time.
(2) Subsection (1) does not entitle an attorney to rely on a power in
support of an act within the scope of the power done by him or her
with notice of termination of the power or notice of suspension of
the power so far as concerns authority to do that act.
(3) This section applies only to an act done by an attorney after the
commencement of the Conveyancing (Powers of Attorney)
Amendment Act 1983.
162A Attorney acting with knowledge of termination or suspension of
power
(1) Where a power of attorney has terminated and an attorney under the
power, knowing of the termination, does any act or thing under or in
pursuance of the power, that attorney under the power is guilty of an
indictable offence and liable to imprisonment for 5 years.
(2) Where a power of attorney is suspended so far as concerns authority
to an attorney to do an act or thing of any nature and an attorney
under the power, knowing of the suspension, does an act or thing of
that nature under or in pursuance of the power, that attorney under
the power is guilty of an indictable offence and liable to
imprisonment for 5 years.
(3) This section applies only to acts or things done after the
commencement of the Conveyancing (Powers of Attorney)
Amendment Act 1983.
162B Saving
Sections 161, 162 and 162A, as enacted immediately before the
commencement of the Conveyancing (Powers of Attorney)
Amendment Act 1983, continue to apply to and in respect of a power
of attorney executed before that commencement as if they had not
been repealed.
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163 Registration of powers of attorney
(1) Any instrument (whether executed before or after the
commencement of this Act) creating a power of attorney for any
purpose whatever may be registered.
(2) Where such instrument is executed after the commencement of this
Act no conveyance or other deed not being a lease or agreement for
a lease for a term not exceeding three years, and no memorandum
by this Act operating as a deed executed by the attorney under the
power in pursuance of the power shall be of any force or validity
whatsoever unless the instrument creating the power has been
registered:
Provided that on registration of the instrument creating the power
every such conveyance deed or memorandum executed by the
attorney under the power shall take effect as if the instrument
creating the power had been registered before the execution of the
conveyance deed or memorandum.
(3) Any instrument revoking any such power may also be registered.
(4) Every such conveyance and other deed and memorandum as is
mentioned in subsection (2) executed by the attorney under a power
of attorney before the commencement of the Conveyancing
(Amendment) Act 1930, shall have the same effect as if that Act had
been in operation at the time of the execution.
(5) Nothing in the last preceding subsection shall affect the rights of any
party to any proceeding at law or in equity concluded before or
pending at the commencement of the Conveyancing (Amendment)
Act 1930.
163A Proof of powers of attorney
(1) Where, in the manner provided by subsection (2), a document
(being a legible document) is certified to be a true and complete
copy of the contents of an instrument creating a power of attorney,
the document is evidence:
(a) as against the principal under the power of attorney--of the
execution and contents of the instrument, and
(b) as against any other person--of the contents of the
instrument.
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(2) A document is certified in the manner provided by this subsection:
(a) if there is endorsed on the document a written certificate, to
the effect that the document is a true and complete copy of the
contents of the instrument of which it purports to be a copy,
by:
(i) the principal under the power of attorney created by the
instrument, or
(ii) a person of a prescribed class, and
(b) if each page of the document bears the signature of the person
who gives the certificate referred to in paragraph (a).
(3) Subsection (1) does not make a document better evidence than is the
instrument of the contents of which it purports to be a copy.
(4) This section does not affect any other method of proving the
execution or contents of an instrument creating a power of attorney.
(5) A person who gives a certificate for the purposes of this section
knowing the certificate to be false is guilty of an indictable offence
and liable to imprisonment for 5 years.
(6) This section applies only to a document certified for the purposes of
this section after the commencement of the Conveyancing (Powers
of Attorney) Amendment Act 1983.
163B Power conferred by prescribed form of instrument
(1) Subject to this section, an instrument (whether or not under seal) in
or to the effect of the form in Schedule 7 confers on the attorney
thereby appointed authority to do on behalf of the person executing
the instrument anything the person executing the instrument may
lawfully authorise an attorney to do.
(2) The authority conferred by an instrument referred to in
subsection (1) does not include:
(a) authority to exercise or perform any power, authority, duty or
function as a trustee conferred or imposed on the person
executing the instrument, or
(b) unless it is expressly conferred by the instrument--authority
to execute an assurance or other document, or do any other
act, as a result of which a benefit would be conferred on the
attorney appointed by the instrument.
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(3) Where an instrument referred to in subsection (1) specifies any
conditions or limitations to which the authority conferred by the
instrument is to be subject, the authority is so conferred subject to
compliance with those conditions or limitations.
Division 2 Unsoundness of mind etc
163C Application of Division
This Division applies only to a power of attorney given after the
commencement of the Conveyancing (Powers of Attorney)
Amendment Act 1983.
163D Definitions
In this Division:
incommunicate, in relation to a person, means under such a
handicap of body or mind, by way of coma or paralysis or otherwise,
whether or not induced by any drug or by medical or other
treatment, that the person is unable to receive communications
respecting the person's property or affairs, or to express the person's
will respecting the person's property or affairs.
protected power of attorney means a power of attorney referred to
in section 163F (2).
163E Initial unsoundness of mind
(1) Subject to this section, a power of attorney is not ineffective by
reason that any act within the scope of the power is of a nature which
is, at the time when the power is given, beyond the understanding of
the principal through unsoundness of mind.
(2) Subject to subsections (3) to (6), a power of attorney does not
authorise an attorney under the power to do an act of a nature which
is, at the time when the power is given, beyond the understanding of
the principal through unsoundness of mind.
(3) Where, on application by the principal under a power of attorney, it
appears to the Court that the nature of the acts, or some one or more
of the acts, within the scope of the power was not, at the time when
the power was given, beyond the understanding of the principal
through unsoundness of mind, the Court may by order confirm the
power wholly or in part as the case requires.
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Repealed provisions of Conveyancing Act 1919 with continuing operation Schedule 1
(4) Where, on application by the principal under a power of attorney, it
appears to the Court that the principal has, before or during the
proceedings on the application, affirmed the power wholly or in
part, the Court may by order confirm the power wholly or in part as
the case requires, but only to the extent to which it appears to the
Court that the principal was, at the time of the affirmation,
sufficiently of sound mind so to affirm.
(5) Where, on application by the principal under a power of attorney
(whether or not a protected power of attorney) it appears to the
Court:
(a) that the principal is incapable of affirming the power because:
(i) the principal lacks capacity by reason of the
continuation of unsoundness of mind that affected the
principal when the principal gave the power, or
(ii) the principal is incommunicate, and
(b) that it is for the benefit of the principal that the power be
confirmed wholly or in part,
the Court may by order confirm the power wholly or in part as the
case requires.
(6) Where the Court makes an order under this section confirming a
power of attorney wholly or in part, an act within the scope of the
power to the extent so confirmed, done after the order takes effect
by an attorney under the power, shall be as good for all purposes and
between all persons as if at the time when the order takes effect the
principal were of full capacity and in due form confirmed the power
of attorney to the extent of the order of confirmation.
(7) Subsection (5) applies only if and so far as a contrary intention is not
expressed in the instrument creating the power, and shall have effect
subject to the terms of the instrument creating the power.
163F Supervening unsoundness of mind
(1) A power of attorney is effective so far as concerns any act within its
scope, being an act of a nature which is not, at the time of the act,
beyond the understanding of the principal through unsoundness of
mind.
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(2) Where:
(a) a power of attorney is, in the instrument creating the power,
expressed to be given with the intention that it will continue
to be effective notwithstanding that, after the execution of the
instrument, the principal suffers loss of capacity through
unsoundness of mind,
(b) the execution of the instrument is attested by a prescribed
person (not being an attorney under the power), and
(c) there is endorsed on, or annexed to, the instrument a
certificate by that prescribed person stating that the prescribed
person explained the effect of the instrument to the principal
before it was executed,
the power of attorney is effective so far as concerns any act within
its scope, notwithstanding that the act is of a nature which is, at the
time of the act, beyond the understanding of the principal through
unsoundness of mind.
(3) This section does not save a power of attorney from being or
becoming ineffective by reason of any matter other than an
unsoundness of mind of the principal arising after the execution of
the instrument creating the power.
(4) This section applies only if and so far as a contrary intention is not
expressed in the instrument creating the power, and shall have effect
subject to the terms of the instrument creating the power.
163G Judicial control in certain circumstances
(1) This section applies to:
(a) a protected power of attorney, and
(b) a power of attorney the principal under which is for the time
being incommunicate.
(2) Where, on application by the principal under a power of attorney, it
appears to the Court to be for the principal's benefit, the Court may,
on the principal's behalf, by order:
(a) remove a person from office as attorney,
(b) appoint a person to fill a vacancy in the office of attorney,
(c) with the consent of the attorney and of any other interested
person:
(i) alter the scope of the power,
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Repealed provisions of Conveyancing Act 1919 with continuing operation Schedule 1
(ii) otherwise alter the instrument creating the power, or
(iii) alter the rights and duties of the principal and the
attorney between themselves,
(d) direct an attorney to furnish accounts and other information to
the Court or to a person approved by the Court, or
(e) revoke the power.
(3) For the purposes of subsection (2) (b), a vacancy in the office of
attorney occurs in any of the following events:
(a) renunciation of the power by an attorney,
(b) removal of an attorney by the principal or with the principal's
authority, or by the Court under subsection (2),
(c) disability of an attorney,
(d) death of an attorney,
(e) where an attorney is a corporation, liquidation or dissolution
of the corporation,
(f) other event personal to an attorney whereby the attorney's
authority is terminated.
(4) Where the Court makes an order directing an attorney to furnish
accounts or other information under subsection (2) (d), the Court
may make further orders for:
(a) preventing unnecessary disclosure of the attorney, and
(b) inquiry and report on the conduct of the attorney.
(5) The Court may revoke a power of attorney under subsection (2) (e)
notwithstanding anything in the instrument creating the power, but
otherwise subsections (2), (3) and (4) apply only if and so far as a
contrary intention is not expressed in the instrument creating the
power, and shall have effect subject to the terms of the instrument
creating the power.
(6) A removal, appointment, alteration or revocation under subsection
(2) (a), (b), (c) and (e) shall have effect as if done in due form by the
principal, and as if the principal were of full capacity and were, so
far as necessary, authorised to do the thing in question by the
instrument creating the power.
(7) This section has effect subject to section 160.
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163H Procedure where principal incommunicate
(1) Where the principal under a power of attorney is incommunicate:
(a) proceedings under this Division by the principal:
(i) may be commenced and carried on as prescribed by
rules of court, or
(ii) subject to rules of court, may be commenced and
carried on as if the principal were of unsound mind, and
(b) subject to rules of court, all persons shall, in relation to the
proceedings, be as nearly as may be in the like position in law
as if the principal were of unsound mind.
(2) Subsection (1) does not limit the rule-making powers conferred by
the Supreme Court Act 1970.
Schedule 7 General power of attorney
(Section 163B)
Part 1
THIS POWER OF ATTORNEY is made on the .................... day of .................... 19 ..........
by AB of ...........................................................................................
1 I appoint CD of ........................................ to be my attorney to exercise, subject to
any conditions and limitations specified in Part 2 of this instrument, the authority
conferred on an attorney by section 163B of the Conveyancing Act 1919, to do on
my behalf anything I may lawfully authorise an attorney to do.
*2 In the exercise of the authority conferred on my attorney by section 163B of the
Conveyancing Act 1919, my attorney is authorised to execute an assurance or other
document, or do any other act, whereby a benefit is conferred on my attorney.
*3 This general power of attorney is given with the intention that it will continue to
be effective notwithstanding that after its execution I suffer loss of capacity
through unsoundness of mind.
(*Clause 2 or 3, or clauses 2 and 3, may be omitted.)
Part 2 Conditions and Limitations
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Form for prescribed power of attorney Schedule 2
Schedule 2 Form for prescribed power of attorney
(Section 8)
General power of attorney
Part 1 General
This power of attorney is made on the.................... day of.................... 20..........
by............................................................................................................... (the principal)
[name]
of.........................................................................................................................
[address]
1 I appoint ...............................................................................................................
[name(s)]
of .........................................................................................................................
[address(es)]
to be my attorney(s). My attorney may exercise the authority conferred on my
attorney by Part 2 of the Powers of Attorney Act 2003 to do on my behalf anything I
may lawfully authorise an attorney to do. My attorney's authority is subject to any
additional details specified in Part 2 of this document.
*2 I give this power of attorney with the intention that it will continue to be effective if I
lack capacity through loss of mental capacity after its execution.
[*You can cross out clause 2 if you do not want it to apply. If you want clause 2 to apply, then
you need to see a solicitor, barrister, registrar of a Local Court or other prescribed witness
referred to in section 19 of the Powers of Attorney Act 2003 who must complete the certificate
that is required under that section.]
*3 This power of attorney operates:
*immediately
*when my attorney accepts (or as each of my attorneys accept) the appointment
*on and from........................................ up to and including........................................
[specify dates]
*when my attorney considers that I need assistance managing my affairs
*other.........................................................................................................................
[*If you include clause 2 above, the power of attorney will not operate to confer any authority
on an attorney until the attorney accepts the power of attorney by signing this document.]
[*Cross out the options that you do not want.]
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Schedule 2 Form for prescribed power of attorney
If no option is selected or the options chosen are unclear or inconsistent, I intend that
the power of attorney will operate immediately or, if clause 2 is not crossed out, when
my attorney accepts, or as each of my attorneys accept, the appointment.
If I appoint more than one attorney, then I appoint them jointly and severally.
4
[Cross out "and severally" if you want your power of attorney to operate only when both
attorneys act together and are both living. You should get legal advice on changing this
clause.]
Part 2 Additional powers and restrictions
*5 I authorise my attorney to give reasonable gifts as provided by section 11 (2) of the
Powers of Attorney Act 2003.
[*Cross out if you do not want to confer this authority.]
*6 I authorise my attorney to confer benefits on the attorney to meet the attorney's
reasonable living and medical expenses as provided by section 12 (2) of the Powers
of Attorney Act 2003.
[*Cross out if you do not want to confer this authority.]
*7 I authorise my attorney to confer benefits on [insert name(s) and address(es) of each
third party] to meet their reasonable living and medical expenses as provided by
section 13 (2) of the Powers of Attorney Act 2003.
[*Cross out if you do not want to confer this authority.]
*8 This power of attorney is subject to the following conditions and limitations:
.........................................................................................................................
[specify conditions and/or limitations]
[*Cross out if you do not want to add conditions or limitations.]
Signed, sealed and delivered by ............................................................
[principal's signature]
in the presence of ............................................................
.................................................. [witness's signature]
[witness's name]
..................................................
[witness's address]
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Form for prescribed power of attorney Schedule 2
[The following certificate is to be completed only if clause 2 is retained and you want to
create an enduring power of attorney.]
Certificate under section 19 of the Powers of Attorney Act 2003
I, .........................................................................................................................
[name]
of .........................................................................................................................
[address]
certify the following:
1 I explained the effect of this power of attorney to the principal before it was signed.
2 The principal appeared to understand the effect of this power of attorney.
3 I am a prescribed witness.
4 I am not an attorney under this power of attorney.
5 I have witnessed the signature of this power of attorney by the principal.
dated.............................
........................................
*solicitor/barrister,
*registrar of a Local Court,
*licensed conveyancer,
*Public Trustee employee,
*trustee company employee,
*other (specify...................................................................................................)
[*Delete inappropriate categories.]
Acceptance by attorney
[To be used for enduring powers of attorney only. It must be signed before the power of
attorney can be used by the attorney.]
I accept my appointment as an attorney under this enduring power of attorney.
dated.............................
........................................
[attorney's signature]
Important information for principals and attorneys
(1) A power of attorney is an important and powerful legal document. You should get
legal advice before you sign it.
A power of attorney gives the attorney the authority to buy and sell real estate, shares
and other assets for the principal, to operate the principal's bank accounts, to spend
the principal's money on behalf of the principal and to exercise many other powers. It
is not to be used after the principal dies.
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Schedule 2 Form for prescribed power of attorney
(2) A power of attorney cannot be used for health or lifestyle decisions. The principal
should appoint an enduring guardian under the Guardianship Act 1987 if the
principal wants a particular person to make these decisions. For further information,
contact the Guardianship Tribunal (toll free 1800 463 928 or www.gt.nsw.gov.au) or
the Public Guardian ((02) 9265 3184 or 1800 451 510 or www.lawlink.nsw.gov.au/
opg).
(3) Part 2 of the power of attorney will permit the attorney to use the principal's money
and assets for the attorney or anyone else as provided by clauses 5, 6 and 7. If the
principal does not want this to happen, then the principal should delete the powers
from Part 2 that the principal does not want to give the attorney.
(4) An attorney must always act in the best interests of the principal. Unless the attorney
is expressly authorised, the attorney cannot gain a benefit from being an attorney.
(5) This power of attorney is for use in New South Wales only. If you need a power of
attorney for interstate or overseas, you may need to make a power of attorney under
their laws. The laws of some other States and Territories in Australia may give effect
to this power of attorney. However, you should not assume this will be the case. You
should confirm whether the laws of the State or Territory concerned will in fact
recognise this power of attorney.
(6) An attorney should keep the attorney's own money and property separate from the
principal's money and property, unless they are joint owners, or operate joint bank
accounts. An attorney should keep reasonable accounts and records about the
principal's money and property.
(7) If the attorney is signing documents that affect real estate, the power of attorney must
be registered at Land and Property Information NSW.
For information on powers of attorney, the attorney's duties and registration, contact Land
and Property Information NSW ((02) 9228 6666 for a fact sheet or www.lpi.nsw.gov.au)
or a solicitor, a trustee company or the Public Trustee (www.pt.nsw.gov.au).
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attorney
Schedule 3 Prescribed expressions and
authorisations for prescribed powers of
attorney
(Sections 11 (2), 12 (2) and 13 (2))
1 Authority to give gifts
(1) The prescribed expression for the purposes of section 11 (2) is as
follows:
I authorise my attorney to give reasonable gifts as provided by
section 11 (2) of the Powers of Attorney Act 2003.
(2) The prescribed expression authorises an attorney to give a gift only
if:
(a) the gift is:
(i) to a relative or close friend of the principal, and
(ii) of a seasonal nature or because of a special event
(including, for example, a birth or marriage), or
(b) the gift is a donation of the nature that the principal made
when the principal had capacity or the principal might
reasonably be expected to make,
and the gift's value is not more than what is reasonable having
regard to all the circumstances and, in particular, the principal's
financial circumstances and the size of the principal's estate.
(3) In this clause:
close friend of a principal means another individual who has a close
personal relationship with the principal and a personal interest in the
principal's welfare.
relative of a principal means:
(a) a mother, father, wife, husband, daughter, son, step-daughter,
step-son, sister, brother, half-sister, half-brother or grandchild
of the principal, or
(b) if the principal is a party to a domestic relationship within the
meaning of the Property (Relationships) Act 1984, any person
who is a relative, of the kind mentioned in paragraph (a), of
either party to the relationship.
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Schedule 3 Prescribed expressions and authorisations for prescribed powers of
attorney
2 Authority to confer benefits on attorney
(1) The prescribed expression for the purposes of section 12 (2) is as
follows:
I authorise my attorney to confer benefits on the attorney to meet the
attorney's reasonable living and medical expenses as provided by
section 12 (2) of the Powers of Attorney Act 2003.
(2) The prescribed expression authorises an attorney to confer a benefit
on the attorney only if:
(a) the benefit meets (whether in whole or in part) any expenses
incurred (or to be incurred) by the attorney in respect of any
of the following:
(i) housing,
(ii) food,
(iii) education,
(iv) transportation,
(v) medical care and medication, and
(b) the benefit is not more than what is reasonable having regard
to all the circumstances and, in particular, the principal's
financial circumstances and the size of the principal's estate.
3 Authority to confer benefits on third parties
(1) The prescribed expression for the purposes of section 13 (2) is as
follows:
I authorise my attorney to confer benefits on [insert name(s) and
address(es) of each third party] to meet their reasonable living and
medical expenses as provided by section 13 (2) of the Powers of
Attorney Act 2003.
(2) The prescribed expression authorises an attorney to confer a benefit
on a named third party only if:
(a) the benefit meets (whether in whole or in part) any expenses
incurred (or to be incurred) by the third party in respect of any
of the following:
(i) housing,
(ii) food,
(iii) education,
(iv) transportation,
(v) medical care and medication, and
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Powers of Attorney Bill 2003
Prescribed expressions and authorisations for prescribed powers of Schedule 3
attorney
(b) the benefit is not more than what is reasonable having regard
to all the circumstances and, in particular, the principal's
financial circumstances and the size of the principal's estate.
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Powers of Attorney Bill 2003
Schedule 4 Amendment of Acts and regulation
Schedule 4 Amendment of Acts and regulation
(Section 55)
4.1 Conveyancing Act 1919 No 6
[1] Part 16 Powers of attorney
Omit the Part.
[2] Schedule 7 General power of attorney
Omit the Schedule.
4.2 Conveyancing (General) Regulation 2003
[1] Clause 49 Certification of copy of power of attorney
Omit the clause.
[2] Clause 50 Attestation of execution of certain powers of attorney
Omit the clause.
[3] Schedule 11 Prescribed witnesses
Omit "Clauses 48 and 49". Insert instead "Clause 48".
4.3 Guardianship Act 1987 No 257
[1] Section 25F When financial management order may be made
Insert at the end of section 25F (c):
, or
(d) following (or in the course of) proceedings under
section 36 of the Powers of Attorney Act 2003 in respect
of an enduring power of attorney given by the person,
being proceedings in which it has decided not to make
an order under that section.
[2] Section 25H Interim financial management orders
Insert "or section 37 (1) of the Powers of Attorney Act 2003" after "section
6K (3)" in section 25H (1).
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Powers of Attorney Bill 2003
Amendment of Acts and regulation Schedule 4
4.4 Protected Estates Act 1983 No 179
[1] Section 13 Declaration and order where person incapable of
managing affairs
Insert "(including an application arising out of the operation of section
37 (2) of the Powers of Attorney Act 2003)" after "this section" in section
13 (2).
[2] Section 76 Powers of attorney
Omit "section 160 of the Conveyancing Act 1919" from section 76 (15).
Insert instead "Part 3 (Irrevocable powers of attorney) of the Powers of
Attorney Act 2003".
[3] Section 76 (16)
Insert after section 76 (15):
(16) For the avoidance of doubt, it is declared that this section
extends to interstate enduring powers of attorney within the
meaning of section 25 of the Powers of Attorney Act 2003 that
have effect in this State under that section.
4.5 Retirement Villages Act 1999 No 81
Section 64 Operator not to demand power of attorney
Omit section 64 (4) and the note to that subsection. Insert instead:
(4) This section has effect despite the provisions of the Powers of
Attorney Act 2003 and despite the terms of any instrument
creating a power of attorney.
Note. Part 3 of the Powers of Attorney Act 2003 deals with irrevocable
powers of attorney. Division 2 of Part 4 of that Act deals with enduring
powers of attorney that are given with the intention that they will continue
to be effective even if the person who gave the power loses capacity
through mental incapacity.
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Powers of Attorney Bill 2003
Schedule 4 Amendment of Acts and regulation
4.6 Trustee Act 1925 No 14
Section 67
Omit the section. Insert instead:
67 Power of attorney
Every delegation under this Part is taken to be a power of
attorney within the meaning of the Powers of Attorney
Act 2003 and that Act (with the exception of Part 3) applies to
that delegation, whether the delegation was made before or
after the commencement of that Act.
4.7 Wills, Probate and Administration Act 1898 No 13
Section 61B Succession to real and personal property on
intestacy
Insert after section 61B (13):
(14) This section has effect subject to the provisions of section 24
(Effect of disposal of home shared by spouses under enduring
power of attorney in cases of intestacy) of the Powers of
Attorney Act 2003.
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Powers of Attorney Bill 2003
Savings, transitional and other provisions Schedule 5
Schedule 5 Savings, transitional and other provisions
(Section 56)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the
provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2 Provisions consequent on enactment of this
Act
2 References to this Act to be read as including references to
corresponding continued provisions of Conveyancing Act 1919
(1) On and after the commencement of this clause, a reference in any
other Act or in an instrument made under any other Act:
(a) subject to paragraph (b)--to this Act is to be read as including
a reference to all of the continued Conveyancing Act
provisions, and
(b) to a provision of this Act is to be read as including a reference
to any continued Conveyancing Act provisions that
correspond (or substantially correspond) to the provision of
this Act.
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Powers of Attorney Bill 2003
Schedule 5 Savings, transitional and other provisions
(2) Subclause (1) does not apply to:
(a) section 67 of the Trustee Act 1925, or
(b) any other provision of another Act, or instrument made under
another Act, prescribed by the regulations.
(3) In this clause, continued Conveyancing Act provisions means the
provisions of Part 16 of, and Schedule 7 to, the Conveyancing
Act 1919 that, by operation of section 6 (3), continue to apply to
powers of attorney created (or purportedly created) by instrument
executed before the commencement of section 6.
3 Persons authorised to certify copies of powers of attorney under
section 44
Until a regulation is made under this Act for the purposes of
section 44 (1) (a) (ii), a person who belongs to the following classes
of persons is taken to be a person who belongs to a class of persons
prescribed for the purposes of that subsection:
(a) in relation to a document that is endorsed within Australia--
the class of persons referred to in clause 49 (a) of the
Conveyancing (General) Regulation 2003 as in force
immediately before the repeal of that clause by this Act, or
(b) in relation to a document that is endorsed within a foreign
country--the class of persons referred to in clause 49 (b) of
the Conveyancing (General) Regulation 2003 as in force
immediately before the repeal of that clause by this Act.
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