Victorian Current Acts

POWERS OF ATTORNEY ACT 2014

TABLE OF PROVISIONS

   PART 1--PRELIMINARY

   1.      Purposes  
   2.      Commencement  
   3.      Definitions  
   4.      Meaning of decision making capacity  
   5.      Assessing decision making capacity  
   5A.     Remote witnessing procedure  
   5B.     Which document is the power of attorney or other document?  
   5C.     Recording of remote witnessing procedure  
   5D.     Remote witnessing procedure does not limit other duties and obligations  

   PART 2--NON-ENDURING POWERS OF ATTORNEY

           Division 1--Definitions

   6.      Definitions  

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

   7.      General non-enduring power of attorney  
   8.      Appointment of more than one attorney  
   9.      Appointment of alternative attorneys  
   10.     When attorney's power is exercisable  

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

   11.     How should a non-enduring power of attorney be executed?  
   12.     Power of an attorney to execute instruments  

           Division 4--Protection from liability

   13.     Interpretation  
   14.     Protection for an attorney who does not know of revocation or invalidity  
   15.     Protection for a third person who does not know of revocation or invalidity when dealing with attorney  

           Division 5--Proof of non-enduringpower of attorney

   16.     Proof of non-enduring power of attorney  

           Division 6--Powers of attorney for security

   17.     Definition  
   18.     Operation of powers of attorney for security  
   19.     Revocation of powers of attorney for security  
   20.     Protection for a person who does not know of revocation of a power of attorney for security  

   PART 3--ENDURING POWERS OF ATTORNEY--SCOPE, MAKING AND RELATED ISSUES

           Division 1--Principles

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

           Division 2--Scope of power

   22.     Enduring power of attorney  
   23.     Who may make an enduring power of attorney?  
   24.     Conditions and instructions in an enduring power of attorney  
   25.     Attorney not able to delegate power  
   26.     Matters for which power cannot be given under an enduring power of attorney  
   27.     Power of an attorney to execute instruments  

           Division 3--Appointment of attorney

   28.     Who is eligible to be appointed as an attorney?  
   29.     Attorney may be occupant of position  
   30.     Appointment of more than one attorney  
   31.     Appointment of alternative attorneys  

           Division 4--Making the power

   32.     Form of enduring power of attorney  
   33.     How should an enduring power of attorney be executed?  
   34.     Who is eligible to sign an enduring power of attorney at the direction of the principal?  
   35.     Who can witness the signing of an instrument creating an enduring power of attorney?  
   36.     Certification of witness to signing  
   37.     Acceptance by attorney  
   38.     Acceptance by alternative attorney  

   PART 4--ENDURING POWERS OF ATTORNEY--COMMENCEMENT

   39.     When attorney's power is exercisable  
   40.     Attorney to notify if acting because the principal does not have decision making capacity  
   41.     Regaining decision making capacity does not prevent exercise of power by attorney  
   42.     Principal may continue to exercise power  

   PART 5--ENDURING POWERS OF ATTORNEY--ENDING

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

   43.     Terms of enduring power of attorney as to revocation  

           Division 2--Revocation by principal

   44.     Revocation by principal  
   45.     Form of revocation  
   46.     How should an instrument of revocation be executed?  
   47.     Who is eligible to sign the instrument of revocation at the direction of the principal?  
   48.     Who can witness the signing of the instrument of revocation?  
   49.     Certification of witness to signing of instrument of revocation  
   50.     Notification of revocation  

           Division 3--Other revocation

   51.     Death of principal  
   52.     Death of attorney  
   53.     Attorney does not have decision making capacity  
   54.     Revocation of appointment and notification of revocation, winding up etc.  
   55.     Revocation by later enduring power of attorney  

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

   56.     Resignation when principal has decision making capacity  
   57.     Form of resignation  
   58.     Notification of resignation  

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

   59.     Resignation when principal does not have decision making capacity  
   60.     Form of resignation  
   61.     Notification of resignation  

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

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

   PART 6--ENDURING POWERS OF ATTORNEY--OPERATION

           Division 1--Duties of attorney

   63.     Duties of attorney  
   64.     Conflict transactions  
   65.     Permitted conflict transactions  
   66.     Keeping records  
   67.     Gifts  
   68.     Maintenance of principal's dependants  
   69.     Separation of attorney's and principal's property  
   70.     Remuneration of attorney  

           Division 2--Decision making between more than one attorney

   71.     Disagreement between attorneys  
   72.     Attorney for financial matters to implement decision  

           Division 3--Protection and relief from liability

   73.     Interpretation  
   74.     Relief from personal liability  
   75.     Protection for attorney, third person who does not know of invalidity or revocation or breach of condition  
   76.     Protection if acting on advice, direction or order of Court or VCAT  

           Division 4--Compensation

   77.     Compensation for acts of attorney  
   78.     Who can apply for an order for compensation?  
   79.     Time limit for application for order for compensation  
   80.     VCAT may refer matter to Supreme Court  

           Division 5--General matters

   81.     Enduring power of attorney is a deed  
   82.     Proof of enduring power of attorney  
   83.     Effect of administration order or guardianship order on enduring power of attorney  
   83A.    Interest of principal in property not to be altered by sale or other disposition of property  
   83B.    Exception to ademption applies regardless of testamentary capacity  

   PART 7--SUPPORTIVE ATTORNEY APPOINTMENTS

           Division 1--Definitions

   84.     Definitions  

           Division 2--Power to make appointment and nature of appointment

   85.     Power to make and scope of appointment  
   86.     Who may make a supportive attorney appointment?  
   87.     Information power  
   88.     Communication power  
   89.     Powers as to giving effect to decisions  
   90.     Duties and obligations of supportive attorney  

           Division 3--Appointment of supportive attorneys

   91.     Who is eligible to be appointed as a supportive attorney?  
   92.     Appointment of more than one supportive attorney  
   93.     Appointment of alternative supportive attorneys  

           Division 4--Making an appointment

   94.     Form of appointment  
   95.     How should an appointment be executed?  
   96.     Who is eligible to sign an appointment form at the direction of the principal?  
   97.     Who can witness the signing of an appointment form?  
   98.     Certification of witness to signing of appointment form  
   99.     Acceptance by supportive attorney  
   100.    Acceptance by alternative supportive attorney  

           Division 5--Commencement and ending of supportive attorney appointment

   101.    When does appointment commence?  
   102.    Effect on appointment if principal does not have decision making capacity  
   103.    Revocation of appointment by principal  
   104.    Form of revocation  
   105.    How should a form of revocation be executed?  
   106.    Who is eligible to sign the form of revocation at the direction of the principal?  
   107.    Who can witness the signing of the form of revocation?  
   108.    Notification of revocation by principal  
   109.    Other revocation of supportive attorney appointment  
   110.    Notification of revocation by operation of section 109(4)  
   111.    Resignation  
   112.    Form of resignation  
   113.    Notification of resignation  

           Division 6--Protection and relief from liability

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

   PART 8--VCAT JURISDICTION

           Division 1--Interpretation

   115.    Interpretation  

           Division 2--VCAT hearing at first instance

   116.    Matters about which VCAT may make an order  
   117.    Considerations for failure to comply with execution requirements  
   118.    Considerations for invalidity of enduring power of attorney  
   119.    Effect of finding of invalidity on enduring power of attorney  
   120.    Nature of VCAT orders  
   121.    Advisory opinions  

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

   122.    Who can apply for an order?  
   123.    Who is entitled to notice?  
   124.    Who are parties to the proceeding?  

           Division 4--VCAT rehearing

   125.    Requirement to rehear  
   126.    Matter that cannot be subject of a rehearing  
   127.    Powers of VCAT on rehearing  
   128.    Effect of, stay of first instance order pending rehearing  
   129.    Nature of rehearing  

           Division 5--Application and procedure, VCAT rehearing

   130.    Who can apply for a rehearing?  
   131.    Who is entitled to notice of rehearing?  
   132.    Who are parties to the proceeding for the rehearing?  
   133.    Time limit for making application  

           Division 6--Effect on VCAT Act

   134.    Effect on VCAT Act  

           Division 7--Powers of VCAT with respect to wills

   134A.   VCAT may open will  
   134B.   VCAT may compel production of will  
   134C.   VCAT may make copy of will available to attorney  

   PART 9--GENERAL

   135.    Offences as to enduring powers of attorney  
   136.    Offences of dishonestly obtaining or using supportive attorney appointment  
   137.    Criminal liability of officers of bodies corporate—failure to exercise due diligence  
   138.    Recognition of enduring powers of attorney made in other States and Territories  
   139.    Regulations  

   PART 10--SAVINGS AND TRANSITIONAL PROVISIONS

           Division 1--Transitional provisions

   140.    Definitions  
   141.    Transitional provision—non-enduring powers of attorney  
   142.    Transitional provision—old enduring powers of attorney  
   143.    Transitional provision—old enduring powers of guardianship  

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

   144.    Amendment of the Instruments Act 1958  
   145.    Repeal of Division 5A of Part 4 of the Guardianship and Administration Act 1986  

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

   146.    Repeal of sections 86 and 86A of the Guardianship and Administration Act 1986  
   147.    Repeal of Schedule 4 to the Guardianship and Administration Act 1986  
   148.    Amendment of the Guardianship and Administration Act 1986  

           Division 3--Powers of Attorney Amendment Act 2016

   149.    Definition  
   150.    Interpretation of Legislation Act 1984 not limited  
   151.    Enduring power of attorney (2014)  
   152.    Old enduring power of attorney  
   153.    Old enduring power of guardianship  
   154.    Applications for VCAT rehearing  

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

   155.    Saving—effect of broader definition of personal matter  
   156.    Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021  
           SCHEDULE
           ENDNOTES