PROTECTED ESTATES ACT 1983 - SECT 76 Powers of attorney

This legislation has been repealed.

PROTECTED ESTATES ACT 1983 - SECT 76

76 Powers of attorney

(1) In this section, "principal" means a person who has given a power of attorney.

(2) A power of attorney is not terminated by the estate of the principal becoming subject to management under this Act.

(3) Subsection (2) has effect subject to the terms of the instrument creating the power.

(4) A person may give a power of attorney notwithstanding that the estate of the person is subject to management under this Act.

(5) A power of attorney is suspended while the estate of the principal is subject to management under this Act.

(5A) Despite subsection (5), if the Guardianship Tribunal, in making a financial management order under section 25E of the Guardianship Act 1987 in relation to a principal, excludes a specified part of the principal's estate from the order, the Guardianship Tribunal may order that the power of attorney is to remain in force in respect of so much of the estate as is excluded from the financial management order concerned.

(5B) The Guardianship Tribunal may make a similar order in respect of so much of the estate as the principal is authorised, under section 23A of this Act, to deal with, but only if the principal is a protected person because of a financial management order made by the Guardianship Tribunal.

(6) Notwithstanding subsection (5), where an attorney under a power of attorney does an act within the scope of the power while the estate of the principal is subject to management under this Act, the act of the attorney has no less validity and effect than the act of the attorney would have had if this section had not been enacted, but this subsection does not affect the operation of subsection (9).

(7) While a power of attorney is suspended by this section, the Court may restore the power of attorney to operation to such extent, and on such terms and conditions, as the Court thinks fit.

(8) The Court may restore a power of attorney to operation under subsection (7) as from any time whether before or after the order of restoration is made or takes effect.

(9) Where the estate of a principal is subject to management under this Act, the Court may:

(a) terminate the power of attorney, or

(b) order that the power of attorney be subject to such conditions as the Court thinks fit.

(10) An attorney under a power of attorney and persons dealing with the attorney and all other persons shall have the like protections against any term or condition of any restoration of the power and against any condition or restriction to which the power is subject under this section as if the term, condition or restriction were effected by act of the principal.

(11) For the purposes of this section:

(a) while a person is a protected person or protected missing person, the estate of the person is subject to management under this Act,

(b) while the Protective Commissioner undertakes the management of the estate of a person in accordance with section 63, the estate of the person is subject to management under this Act, and

(c) where, in relation to a person, it is certified to the Protective Commissioner and the Protective Commissioner is authorised as mentioned in section 66, the estate of the person thereupon becomes subject to management under this Act and remains so during the life of the person or until the Court declares that the exercise of the powers of the Protective Commissioner in relation to the estate is not required.

(12) The Court may make a declaration for the purposes of subsection (11) (c) on the application of the Protective Commissioner, the person whose power of attorney is in question or an attorney under the power of attorney.

(13) A declaration for the purposes of subsection (11) (c) shall not have any effect otherwise than for the purpose of subsection (11) (c).

(14) This section does not apply to a power of attorney given before the commencement of Schedule 1 to the Conveyancing (Powers of Attorney) Amendment Act 1983 .

(15) This section has effect subject to Part 3 (Irrevocable powers of attorney) of the Powers of Attorney Act 2003 .

(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.