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POWERS OF ATTORNEY BILL 2003 Explanatory Notes

POWERS OF ATTORNEY BILL 2003

Explanatory Notes

Powers of Attorney Bill 2003



Explanatory note

This explanatory note relates to this Bill as introduced into Parliament.



Overview of Bill



The objects of this Bill are:



(a) to re-enact the provisions of Part 16 of the Conveyancing Act 1919 relating

to powers of attorney with modifications that provide for the following:

        (i) the replacement of the statutory short form of power of attorney

with one that can be amended by the regulations (a prescribed

power of attorney),

        (ii) the clarification of the extent to which an attorney under a

prescribed power of attorney may take a benefit, confer a benefit on

a third party or give a gift under the power of attorney,

        (iii) the renaming of protected powers of attorney, which have effect

despite the subsequent mental incapacity of the person giving the

power (the principal), as enduring powers of attorney,

        (iv) the enactment of a requirement that an enduring power of attorney

does not operate to confer any authority on a proposed attorney

under that power until the attorney accepts appointment by signing

the instrument creating the power,

        (v) the enactment of provisions to protect an interest of a beneficiary

under the will of a principal under an enduring power of attorney

where a proposed gift of property to the beneficiary under the will

has been disposed of by the attorney before the principal’s death,

        (vi) the enactment of provisions to protect the interest of a spouse of an

intestate deceased principal in a shared home that was sold or

otherwise disposed of by an attorney under an enduring power of

attorney,

        (vii) the expansion of the jurisdiction of the Guardianship Tribunal and

Supreme Court to deal with enduring powers of attorney and issues

of incapacity relating to powers of attorney,

        (viii) the enactment of provisions that will recognise and give effect in

this State to enduring powers of attorney made in other States and

Territories,

        (ix) the restatement of the common law rule that an attorney under a

power of attorney cannot delegate the attorney’s authority to a third

party unless the instrument creating the power expressly provides

for it,

        (x) to extend the concept of incommunicate principals to persons who

are unable to receive communications respecting their property or

affairs because they cannot be located or contacted so that the

Supreme Court can review powers of attorney made by such

persons,

        (xi) the enactment of provisions that make it clear that if more than one

attorney is appointed under a power of attorney, a vacancy in the

office of one of the attorneys will not terminate the power of

attorney if the attorney was appointed severally or jointly and

severally, but will terminate the power if the attorney was appointed

jointly but not severally, and



(b) to enact provisions of a savings and transitional nature, and



(c) to make consequential amendments to the Conveyancing Act 1919 and

certain other legislation.

Outline of provisions



Part 1 Preliminary

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days

to be appointed by proclamation.

Clause 3 defines certain terms and expressions used in the proposed Act.

Clause 4 provides that a person is incommunicate for the purposes of the

proposed Act if:



(a) the person suffers from a 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.

Proposed section 4 (1) (a) substantially re-enacts the definition of

incommunicate in section 163D of the Conveyancing Act 1919. However, the

proposed section extends the concept to persons who are unable to receive

communications respecting their property or affairs because they cannot be

located or contacted. In Cox v Goldcrest Developments (NSW) Pty Ltd (2000) 50

NSWLR 76 at 79, it was held that such persons were not incommunicate for the

purposes of section 163D of the Conveyancing Act 1919.

Clause 5 provides that there is a vacancy in the office of an attorney for the

purposes of the proposed Act if:



(a) the appointment of the attorney is revoked, or



(b) the attorney renounces the power, or



(c) the attorney dies, or



(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.

Clause 6 provides that, as a general rule, the proposed Act will apply only to

powers of attorney created (or purportedly created) by an instrument executed

on or after the commencement of the proposed section (the commencement

date). The provisions of Part 16 of, and Schedule 7 to, the Conveyancing

Act 1919 will continue to apply to powers of attorney created (or purportedly

created) before the commencement date despite the repeal of those provisions by

Schedule 4.1 to the proposed Act.

There are three exceptions to this general rule.

Firstly, proposed section 25 (Recognition of enduring powers of attorney made

in other States and Territories) will extend to any power of attorney created (or

purportedly created) by an instrument executed before the commencement date.

Secondly, Part 5 (Review of powers of attorney) of the proposed Act will extend

to certain powers of attorney created (or purportedly created) by an instrument

executed before the commencement date.

Thirdly,Division 3 of Part 6 (Registration of powers of attorney) of the proposed

Act will extend to certain powers of attorney created by an instrument executed

before the commencement date.

Clause 7 provides that the proposed 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 the proposed Act provides otherwise, whether expressly

or by necessary intention. It also provides that the proposed Act does not affect

the operation of Part 3 of the Conveyancing Act 1919 (which deals with the

execution and effect of deeds) except to the extent that the proposed Act

provides otherwise, whether expressly or by necessary intention.

Part 2 Prescribed powers of attorney

Clause 8 provides that an instrument that is in or to the effect of the form set out

in Schedule 2 is a prescribed power of attorney for the purposes of the proposed

Act.

The proposed section substantially re-enacts the provisions of section 163B (1)

of the Conveyancing Act 1919 relating to the form of a prescribed power of

attorney.

Clause 9 specifies the kinds of powers that a prescribed power of attorney

confers on an attorney. In particular, a prescribed power of attorney authorises

an attorney to do on behalf of a principal anything that a principal may lawfully

authorise an attorney to do. However, the proposed section also makes it clear

that a prescribed power of attorney has effect subject to compliance with any

conditions or limitations specified in the instrument creating the power.

The proposed section substantially re-enacts the provisions of section 163B (1)

and (3) of the Conveyancing Act 1919 relating to the power conferred on an

attorney by a prescribed power of attorney.

Clause 10 makes it clear that a prescribed power of attorney does not confer

authority to exercise any function as a trustee that is conferred on a principal.

The proposed section substantially re-enacts the provisions of

section 163B (2) (a) of the Conveyancing Act 1919.

Clause 11 provides that 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.

However, the proposed section also provides that if a prescribed power of

attorney includes a certain expression set out in Schedule 3, this will authorise

an attorney to give the kinds of gifts that are specified by that Schedule for that

expression.

Clause 12 provides that 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.

This restates the rule currently contained in section 163B (2) (b) of the

Conveyancing Act 1919.

However, the proposed section also provides that if a prescribed power of

attorney includes a certain expression set out in Schedule 3, this will authorise

an attorney to confer on the attorney the kinds of benefits that are specified by

that Schedule for that expression.

Clause 13 provides that 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.

However, the proposed section also provides that if a prescribed power of

attorney includes a particular expression set out in Schedule 3, this will authorise

an attorney to confer on a third party the kinds of benefits that are specified by

that Schedule for that expression.

Clause 14 enables the Governor to make regulations that replace or amend

Schedule 2 or 3 (or both). Schedule 2 sets out the form of a prescribed power of

attorney. Schedule 3 specifies expressions that may be included in a prescribed

power of attorney for the purposes of proposed sections 11, 12 and 13 that, if

included in a prescribed power of attorney, will authorise the attorney to give

gifts or confer certain benefits of the kind specified in that Schedule.

Part 3 Irrevocable powers of attorney

Clause 15 provides that an instrument is an irrevocable power of attorney for

the purposes of the proposed Act if the instrument is expressed to be irrevocable

and is given for valuable consideration (or is expressed to be given for valuable

consideration).

The proposed section substantially re-enacts the provisions of section 160 (1) of

the Conveyancing Act 1919 relating to the creation of irrevocable powers of

attorney.

Clause 16 provides for the effect of an irrevocable power of attorney. In

essence, an irrevocable power of attorney will remain effective even if the

principal dies, becomes mentally incapacitated or becomes bankrupt. It will also

remain effective if an act is done by the attorney without the concurrence of the

principal.

The proposed section substantially re-enacts the provisions of section 160 (1) of

the Conveyancing Act 1919 relating to the effect of an irrevocable power of

attorney.

Part 4 Incapacity and enduring powers of attorney

Division 1 Initial and supervening mental incapacity

Clause 17 provides that 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. However, an attorney is not authorised to do any such act unless it is

authorised by or under the proposed Act.

The proposed section substantially re-enacts the provisions of section 163E (1)

and (2) of the Conveyancing Act 1919.

Clause 18 provides that 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.

The proposed section substantially re-enacts the provisions of section 163F (1)

of the Conveyancing Act 1919.

Division 2 Enduring powers of attorney

Clause 19 provides that an instrument creating a power of attorney is an

enduring power of attorney for the purposes of the proposed 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 the execution of the instrument, and



(b) the execution of the instrument by the principal is witnessed by a witness

(not being an attorney under the power) of the kind set out in the proposed

section, and



(c) there is endorsed on, or annexed to, the instrument a certificate by the

witness stating that the witness explained the effect of the instrument to

the principal and the principal appeared to understand the effect of the

power of attorney before it was signed.

An enduring power of attorney is the same kind of instrument as the protected

power of attorney currently recognised by section 163F (2) of the Conveyancing

Act 1919.

Clause 20 provides that 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. There is currently no

similar requirement in relation to protected powers of attorney under the

Conveyancing Act 1919.

Clause 21 provides that 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.

The proposed section substantially re-enacts the provisions of section 163F (2),

(3) and (4) of the Conveyancing Act 1919 relating to the effectiveness of

protected powers of attorney under that Act.

Clause 22 provides that a person who is referred to in the will of a deceased

principal under an enduring power of attorney as the beneficiary (a named

beneficiary) of property of the principal that has been disposed of by the attorney

under that power retains the same interest in any surplusmoney or other property

arising fromthe disposition as the beneficiary would have had if the property had

not been disposed of. The purpose of the provision is to protect against the

ademption of testamentary gifts by the attorney. Currently, there is no similar

protection in respect of protected powers of attorney under the Conveyancing

Act 1919.

The provision is similar in its terms to section 48 (Interest in property of certain

persons not to be altered) of the Protected Estates Act 1983.

Clause 23 enables a beneficiary of the kind referred to in proposed section 22

to apply to the Supreme Court for orders either confirming the operation of

proposed section 22 or varying the operation of the proposed section so as to

avoid any one or more beneficiaries under the will gaining an unjust and

disproportionate advantage or disadvantage of the kind not intended by the

principal.

Clause 24 enables the spouse of a deceased principal under an enduring power

of attorney who dies intestate to have a greater proportion of the principal’s

estate where their shared home (to which the spouse would have been entitled

under sections 61B and 61D of the Wills, Probate and Administration Act 1898)

has been disposed of by the attorney under the power of attorney and the spouse

has no claim in respect of any replacement shared home at the time of the

principal’s death. Currently, there is no similar protection in respect of protected

powers of attorney under the Conveyancing Act 1919.

Clause 25 provides for the recognition in New SouthWales of enduring powers

of attorney made in other States or Territories. There is currently no comparable

provision in the Conveyancing Act 1919.

Part 5 Review of powers of attorney

Division 1 General

Clause 26 provides that, for the purposes of reviewing powers of attorney under

the Part, both the Guardianship Tribunal and Supreme Court are review

tribunals.

Clause 27 confers concurrent jurisdiction on both the Guardianship Tribunal

and Supreme Court in respect of provisions of the Part that confer functions on

a review tribunal. However, if a function is conferred on the Guardianship

Tribunal or Supreme Court expressly, the jurisdiction to exercise that function

can only be exercised by the expressly named body.

Division 2 Termination of irrevocable powers of attorney

Clause 28 provides that the Supreme Courtmay order that an irrevocable power

of attorney is terminated if it 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.

The proposed section substantially re-enacts the provisions of section 160 (2) of

the Conveyancing Act 1919 relating to the termination of irrevocable powers of

attorney under that Act.

Division 3 Confirmation of powers conferred when principal

mentally incapacitated

Clause 29 enables the Supreme Court, on the application of a principal under a

power of attorney, to confirm 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.

The proposed section substantially re-enacts the provisions of section 163E (3)

of the Conveyancing Act 1919.

Clause 30 enables the Supreme Court, on the application of a principal under a

power of attorney, to confirm 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 the

power was subsequently affirmed by the principal while he or she was mentally

capable.

The proposed section substantially re-enacts the provisions of section 163E (4)

of the Conveyancing Act 1919.

Clause 31 enables the Supreme Court, on the application of a principal under a

power of attorney, to confirm 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 if it appears to the Court that the principal is still

unable to affirm the power and it is in the principal’s best interest to do so.

The proposed section substantially re-enacts the provisions of section 163E (5)

and (7) of the Conveyancing Act 1919.

Clause 32 provides that an order made by the Supreme Court under the

Division confirming a power has effect as if at the time when the order takes

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.

The proposed section substantially re-enacts the provisions of section 163E (6)

of the Conveyancing Act 1919.

Division 4 Review of enduring powers of attorney and other

powers

Clause 33 provides that the following powers of attorney are reviewable under

the Division (reviewable powers of attorney):



(a) enduring powers of attorney are reviewable by both the Guardianship

Tribunal and the Supreme Court,



(b) any other power of attorney where the principal is currently

incommunicate is reviewable by the Supreme Court (but not the

Guardianship Tribunal).

Currently, the Supreme Court has exclusive jurisdiction to review such powers

of attorney under section 163G of the Conveyancing Act 1919. However, the

Supreme Court’s jurisdiction in respect of powers of attorney made by principals

who are incommunicate is limited to principals who are incommunicate by

reason of a mental or physical incapacity. The extended definition of

incommunicate in the proposed Act will confer jurisdiction on the Supreme

Court to review powers of attorney made by principals who are unable to receive

communications respecting their property or affairs because they cannot be

located or contacted.

Clause 34 enables the Guardianship Tribunal and the Supreme Court each to

refer an application under the Division relating to an enduring power of attorney

to the other review tribunal (for instance, because of the level of complexity of

legal issues likely to be raised by the application).

Clause 35 provides for who may make, and who are to be the parties to,

applications under the Division. For instance, a person is an interested person

for the purposes of making applications in respect of a reviewable power of

attorney if the person is any of the following:



(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.

Currently, section 163G (2) of the Conveyancing Act 1919 limits the making of

applications to review such powers of attorney to the principal.

Clause 36 enables a review tribunal to review the operation and effect of a

reviewable power of attorney on the application of an interested person.

The proposed section confers a number of new powers on a review tribunal

beyond those currently listed in section 163G of the Conveyancing Act 1919,

including powers to make the following orders:



(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),



(c) an order varying a term of, or a power conferred by, the power of attorney

(even without the consent of the attorney),



(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 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,



(f) such other orders as the review tribunal thinks fit.

The new review powers differ from the current provisions of section 163G of the

Conveyancing Act 1919 in at least two other respects. First, the jurisdiction

conferred by section 163G on the Supreme Court can, except to a limited extent,

be ousted by the instrument creating the power of attorney. This is not the case

with the new provisions, unless the power of attorney is an irrevocable power of

attorney. Second, a review tribunal will have the power to reinstate a lapsed

power of attorney and direct that the order have effect from the date on which it

lapsed. There is no similar power in section 163G.

Clause 37 enables the Guardianship Tribunal, on an application for the review

of a reviewable power of attorney, to proceed instead as if an application for a

financial management order under Part 3A (Financial management) of the

Guardianship Act 1987 had been duly made in respect of the principal under that

power if it considers it appropriate in all the circumstances to do so. Also, the

proposed section enables the Supreme Court, on an application for the review of

a reviewable power of attorney, to 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 if it considers it appropriate in

all the circumstances to do so.

Clause 38 enables a review tribunal, on the application of an attorney under a

reviewable power of attorney, to give advice or direction on any matter relating

to the scope of the attorney’s appointment or the exercise of any function by the

attorney under the power of attorney or to approve acts proposed to be done by

the attorney under the power. If any such advice or direction is given (or an act

approved), no proceedings will lie against an 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 by the review

tribunal.

Division 5 Reference of questions of law

Clause 39 enables the Guardianship Tribunal, in determining an application in

respect of a reviewable power of attorney, to refer questions of law to the

Supreme Court for the opinion of the Court.

Division 6 Appeals from decisions of Guardianship Tribunal

Clause 40 provides for an appeal against a decision of the Guardianship

Tribunal to the Supreme Court on a question of law or, with the leave of that

Court, on any other question, in each case relating to proceedings for joining a

party in a matter under Division 4 or arising under proposed section 36.

Clause 41 provides for an appeal to the Administrative Decisions Tribunal

against any decision of the Guardianship Tribunal in any such proceedings.

Division 7 Procedure in relation to incommunicate principals

Clause 42 provides for how proceedings under the Part are to be commenced

and carried on if the principal is incommunicate.

The proposed section substantially re-enacts the provisions of section 163H of

the Conveyancing Act 1919.

Part 6 Powers of attorney generally

Division 1 General provisions

Clause 43 enables an attorney under a power of attorney to execute instruments

and do other things in the attorney’s own name.

The proposed section substantially re-enacts the provisions of section 159 of the

Conveyancing Act 1919.

Clause 44 provides that a document that is a certified copy of a power of

attorney as provided by the proposed section is evidence of the execution and

contents of the power of attorney. It also makes it an offence for a person to give

a false certificate under the proposed section. The maximum penalty for such an

offence will be 5 years imprisonment.

The proposed section substantially re-enacts the provisions of section 163A of

the Conveyancing Act 1919.

Clause 45 provides that 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. It also provides that an attorney

cannot irrevocably appoint a substitute, delegate or sub-attorney unless the

instrument creating the power of attorney expressly provides for the attorney to

do so.

The proposed section substantially re-enacts the provisions of section 158 (3) of

the Conveyancing Act 1919 in relation to attempts to irrevocably appoint a

substitute, delegate or sub-attorney.

Division 2 Termination and suspension of powers of

attorney

Clause 46 provides that 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. It also provides that 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. There are currently no

corresponding provisions in the Conveyancing Act 1919.

Clause 47 provides that an attorney is entitled to rely on a power of attorney that

has been terminated or suspended if the attorney is unaware of the termination

or suspension of the power.

The proposed section substantially re-enacts the provisions of section 161 of the

Conveyancing Act 1919.

Clause 48 provides that third parties to a power of attorney are entitled in

certain circumstances to rely on acts done under terminated or suspended powers

of attorney.

The proposed section substantially re-enacts the provisions of section 162 of the

Conveyancing Act 1919.

Clause 49 makes it an offence for an attorney to do an act or thing under a

power of attorney that the attorney knows had been terminated at the time of

doing the act or thing. It also makes it an offence for an attorney to do an act or

thing under a power of attorney that the attorney knows had been suspended at

the time of doing the act or thing. The maximum penalty for each of the offences

is 5 years imprisonment.

The proposed section substantially re-enacts the provisions of section 162A of

the Conveyancing Act 1919.

Clause 50 indicates that 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. Section 76 of that Act provides that a power of

attorney is not terminated only because the estate of the principal has become

subject to management under that Act. It also provides that a power of attorney

is suspended while the estate of the principal is subject tomanagement under that

Act.

Division 3 Registration of powers of attorney

Clause 51 enables an instrument creating or revoking a power of attorney to be

registered by the Registrar-General in the General Register of Deeds kept under

the Conveyancing Act 1919.

The proposed section substantially re-enacts the provisions of section 163 (1)

and (3) of the Conveyancing Act 1919.

Clause 52 provides that certain deeds (or memoranda that operate as deeds) that

are executed by an attorney under a power of attorney do not have effect until

the power of attorney is registered.

The proposed section substantially re-enacts the provisions of section 163 (2)

and (4) of the Conveyancing Act 1919. However, the proposed section makes it

clear that this requirement to register powers of attorney is limited to deeds and

memoranda affecting land. There has been some doubt in the case law about

whether section 163 (2) and (4) of the Conveyancing Act 1919 extend to other

kinds of deed. However, the case law has tended to suggest that those provisions

are limited to instruments affecting land. See Maronis Holdings Ltd v Nippon

Credit Australia Pty Ltd (2001) 38 ACSR 404 at 432.

Part 7 Miscellaneous

Clause 53 enables the Governor to make regulations for the purposes of the

proposed Act.

Clause 54 provides that an offence under the proposed Act (other than an

offence under the regulations) is to be prosecuted on indictment. Offences under

the regulations may be dealt with summarily before a Local Court.

Clause 55 gives effect to consequential amendments made to certain Acts and

a regulation set out in Schedule 4.

Clause 56 gives effect to Schedule 5 containing savings, transitional and other

provisions.

Clause 57 provides for a review of the operation of the proposed Act to be

undertaken after 5 years from the date of assent to the proposed Act.

Schedule 1 Repealed provisions of Conveyancing Act

1919 with continuing operation

Schedule 1 contains a copy of the provisions of Part 16 of, and Schedule 7 to,

the Conveyancing Act 1919 (which deal with powers of attorney) as in force

immediately before the commencement of proposed section 6.

Schedule 2 Form for prescribed power of attorney

Schedule 2 contains the form for a prescribed power of attorney.

Schedule 3 Prescribed expressions and

authorisations for prescribed powers of

attorney

Schedule 3 specifies expressions that may be included in a prescribed power of

attorney for the purposes of proposed sections 11, 12 and 13 that, if included in

a prescribed power of attorney, will authorise the attorney to give gifts or confer

certain benefits of the kind specified in that Schedule.

Schedule 4 Amendment of Acts and regulation

Schedule 4 makes amendments that are consequential on the enactment of the

proposed Act to the Conveyancing Act 1919, the Conveyancing (General)

Regulation 2003, the Guardianship Act 1987, the Protected Estates Act 1983,

the Retirement Villages Act 1999, the Trustee Act 1925 and the Wills, Probate

and Administration Act 1898.

Schedule 5 Savings, transitional and other provisions

Schedule 5 contains provisions enabling the Governor to make regulations of a

savings and transitional nature. It also provides that references in other Acts and

in instruments made under other Acts to the proposed Act are to be read as

including references to corresponding provisions of the Conveyancing Act 1919

that have continuing effect under proposed section 6 of the proposed Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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