POWERS OF ATTORNEY BILL 1997
Queensland POWERS OF ATTORNEY BILL 1997
Queensland POWERS OF ATTORNEY BILL 1997 TABLE OF PROVISIONS Section Page CHAPTER 1--PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5 General overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 6 Scope of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CHAPTER 2--POWERS OF ATTORNEY OTHER THAN ENDURING POWERS OF ATTORNEY PART 1--INTRODUCTION 7 Application of ch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 8 Powers of attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 9 When attorney's power exercisable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 10 Powers of attorney given as security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 PART 2--MAKING A POWER OF ATTORNEY OTHER THAN AN ENDURING POWER OF ATTORNEY 11 Form of general power of attorney made under Act . . . . . . . . . . . . . . . . . . . 16 12 Execution of powers of attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 13 Appointment of 1 or more attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 14 Proof of power of attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 PART 3--REVOKING A POWER OF ATTORNEY OTHER THAN AN ENDURING POWER OF ATTORNEY Division 1--Introduction 15 Relationship with other law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2 Powers of Attorney Division 2--Revocation by principal 16 Advice of revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 17 Written revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 18 Impaired capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 19 Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Division 3--Revocation according to terms 20 According to terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Division 4--Revocation by attorney 21 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 22 Impaired capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 23 Bankruptcy or insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 24 Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 PART 4--OTHER PROVISIONS 25 Registration of powers of attorney and instruments revoking powers . . . . . 22 26 Offence to dishonestly induce the making or revocation of power of attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CHAPTER 3--ENDURING DOCUMENTS PART 1--APPLICATION AND INTERPRETATION 27 Application of ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 28 Meaning of "enduring document" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 29 Meaning of "eligible attorney" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 30 Meaning of "eligible signer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 31 Meaning of "eligible witness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 PART 2--ENDURING POWER OF ATTORNEY PROVISIONS 32 Enduring powers of attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 33 When attorney's power exercisable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 34 Recognition of enduring power of attorney made in other States . . . . . . . . 27 PART 3--ADVANCE HEALTH DIRECTIVE PROVISIONS 35 Advance health directives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 36 Operation of advance health directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 37 Act's relationship with Mental Health Act . . . . . . . . . . . . . . . . . . . . . . . . . . 29 38 Common law not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3 Powers of Attorney 39 Recognition of enduring health care document made in other States . . . . . 29 PART 4--MAKING AN ENDURING DOCUMENT 40 Principal's capacity to make an enduring power of attorney . . . . . . . . . . . . 30 41 Principal's capacity to make an advance health directive . . . . . . . . . . . . . 31 42 Appointment of 1 or more eligible attorneys . . . . . . . . . . . . . . . . . . . . . . . . . 31 43 Formal requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 44 Proof of enduring document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 PART 5--REVOKING AN ENDURING DOCUMENT Division 1--Revocation by principal 45 Advice of revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 46 Principal's capacity for written revocation of power of attorney . . . . . . . . . 35 47 Principal's capacity for written revocation of advance health directive . . . 35 48 Formal requirements for written revocation of enduring document . . . . . . . 35 49 Later enduring document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 50 Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 51 Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 52 Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Division 2--Revocation according to terms 53 According to terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Division 3--Revocation by attorney 54 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 55 Impaired capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 56 Bankruptcy or insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 57 Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 58 Paid carer or health provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 PART 6--OTHER PROVISIONS 59 Registration of powers of attorney and instruments revoking powers . . . . . 39 60 Offence to dishonestly induce the making or revocation of enduring document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 CHAPTER 4--STATUTORY HEALTH ATTORNEYS 61 Statutory health attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 62 Who is the statutory health attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4 Powers of Attorney 63 Intervention by adult guardian if dispute or contrary to health care principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 CHAPTER 5--EXERCISING POWER FOR A PRINCIPAL PART 1--PROVISIONS APPLYING TO ATTORNEYS 64 Application of pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 65 Act honestly and with reasonable diligence . . . . . . . . . . . . . . . . . . . . . . . . . 43 66 Subject to terms of document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 67 Effect of disqualification of 1 joint attorney . . . . . . . . . . . . . . . . . . . . . . . . . 43 68 Execution of instrument etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 69 Subject to committee or manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 70 Not exercise revoked power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 71 Resignation of attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 72 Avoid conflict transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 73 Preservation of confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 PART 2--PROVISIONS APPLYING TO ATTORNEYS UNDER ENDURING DOCUMENTS AND STATUTORY HEALTH ATTORNEYS 74 Application of pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 75 General principles for adults with impaired capacity . . . . . . . . . . . . . . . . . . 47 76 Attorney has maximum power if not otherwise stated . . . . . . . . . . . . . . . . . 47 77 Multiple attorneys are joint if not otherwise stated . . . . . . . . . . . . . . . . . . . 47 78 Consult with principal's other attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 79 Act together with joint attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 80 Right of attorney to information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 81 Resignation of attorney while principal has impaired capacity . . . . . . . . . . 49 PART 3--PROVISIONS ABOUT FINANCIAL MATTERS 82 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 83 Power to invest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 84 Keep records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 85 Keep property separate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 86 Presumption of undue influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 87 Gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 88 Maintain principal's dependants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5 Powers of Attorney PART 4--PROVISIONS ABOUT HEALTH MATTERS 89 Principal with impaired capacity--order of priority in dealing with special health or health matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 90 Minor, uncontroversial health care without consent . . . . . . . . . . . . . . . . . . . 52 91 Effect of adult's objection to health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 92 Use of force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 93 Offence to make decision for adult if no right to do so . . . . . . . . . . . . . . . . 54 94 Intervention by adult guardian if dispute or contrary to health care principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 PART 5--PROTECTION AND RELIEF FROM LIABILITY 95 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 96 Protection if court advice, directions or recommendations . . . . . . . . . . . . . 55 97 Protection for attorney if unaware of invalidity . . . . . . . . . . . . . . . . . . . . . . . 56 98 Protection for person dealing with attorney and next person if unaware of invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 99 Additional protection if unaware of invalidity in health context . . . . . . . . . 57 100 No less protection than if adult gave health consent . . . . . . . . . . . . . . . . . . 57 101 Protection of health provider unaware of advance health directive . . . . . . 58 102 Protection of health provider for non-compliance with advance health directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 103 Protection of health provider acting in reliance on purported exercise of attorney's power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 104 Relief from personal liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 PART 6--COMPENSATION 105 Compensation for failure to comply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 106 Power to apply to court for compensation for loss of benefit in estate . . . . 60 CHAPTER 6--SUPREME COURT PART 1--GENERAL 107 Powers extend to powers of attorney made otherwise than under this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 108 Inherent jurisdiction and next friend and guardian ad litem process not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 PART 2--COURT'S POWERS 109 Application and participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 110 Determination of capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6 Powers of Attorney 111 Effect of declaration about capacity to enter contract . . . . . . . . . . . . . . . . . 63 112 Declaration about validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 113 Effect of invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 114 Declaration about commencement of power . . . . . . . . . . . . . . . . . . . . . . . . . 64 115 Order removing attorney or changing or revoking document . . . . . . . . . . . . 64 116 Changed circumstances as basis for change or revocation . . . . . . . . . . . . . 64 117 Advice, directions and recommendations etc. . . . . . . . . . . . . . . . . . . . . . . . . 64 118 Consent to special health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 119 Court may proceed without all relevant material . . . . . . . . . . . . . . . . . . . . . 65 120 Report by adult guardian or public trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 121 Records and audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 122 Court may dismiss frivolous etc. applications . . . . . . . . . . . . . . . . . . . . . . . . 67 123 Written reasons for decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 124 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 CHAPTER 7--ADULT GUARDIAN PART 1--ESTABLISHMENT, FUNCTIONS AND POWERS 125 Adult guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 126 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 127 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 128 Not under Ministerial control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 129 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 130 Consultation and employment of professionals . . . . . . . . . . . . . . . . . . . . . . . 70 131 Advice and supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 132 Whistleblowers' protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 PART 2--INVESTIGATIVE POWERS 133 Investigate complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 134 Records and audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 135 Right to information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 136 Power to summon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 137 Cost of investigations and audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 138 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 139 False, misleading or incomplete documents . . . . . . . . . . . . . . . . . . . . . . . . . 75
7 Powers of Attorney 140 Obstructing investigation or audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 141 Report after investigation or audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 PART 3--PROTECTIVE POWERS 142 Proceedings for protection of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 143 Suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 144 Application for entry and removal warrant . . . . . . . . . . . . . . . . . . . . . . . . . . 78 145 Issue of entry and removal warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 146 Role of occupier if entry and removal warrant . . . . . . . . . . . . . . . . . . . . . . . 78 147 Role of police officer if entry and removal warrant . . . . . . . . . . . . . . . . . . . 79 148 Reporting requirement after removal of adult . . . . . . . . . . . . . . . . . . . . . . . . 79 PART 4--ADMINISTRATIVE PROVISIONS 149 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 150 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 151 Terms of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 152 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 153 Acting adult guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 154 Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 155 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 156 Preservation of confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 157 Disclosure of information about investigations . . . . . . . . . . . . . . . . . . . . . . . 82 158 Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 159 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 CHAPTER 8--OTHER 160 Chief executive may approve forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 161 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 CHAPTER 9--TRANSITIONAL AND CONSEQUENTIAL PART 1--TRANSITIONAL 162 Powers of attorney under Property Law Act 1974 . . . . . . . . . . . . . . . . . . . . . 84 PART 2--AMENDMENT OF FREEDOM OF INFORMATION ACT 1992 163 Act amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 164 Amendment of s 11 (Act not to apply to certain bodies etc.) . . . . . . . . . . . 84
8 Powers of Attorney PART 3--AMENDMENT OF INTELLECTUALLY DISABLED CITIZENS ACT 1985 165 Act amended in pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 166 Amendment of section 4 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 167 Amendment of section 13A (Allocation of duties to panels) . . . . . . . . . . . . 85 168 Amendment of s 18 (Quorum) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 169 Amendment of s 19 (Meetings) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 170 Replacement of pt 2A (Legal friend) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 PART 2A--LEGAL FRIEND AND ADULT GUARDIAN 26 Legal friend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 26A Adult guardian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 26B Acting before assisted citizen status . . . . . . . . . . . . . . . . . . . . . . . . . 89 26C Protection when supplying information . . . . . . . . . . . . . . . . . . . . . . . 89 26D Advice to council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 26E Independence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 26F Powers of Attorney Act principles . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 171 Amendment of s 27 (Applications for approvals and reviews) . . . . . . . . . . 90 172 Amendment of s 28 (Review) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 173 Amendment of s 29 (Notice of proceedings etc.) . . . . . . . . . . . . . . . . . . . . . 91 174 Replacement of s 30 (Proceedings on applications and reviews) . . . . . . . . 91 30 Proceedings on applications and reviews . . . . . . . . . . . . . . . . . . . . . 91 175 Amendment of s 31A (Consideration of applications etc.) . . . . . . . . . . . . . 92 176 Amendment of s 44 (Access to certain intellectually disabled citizens) . . 93 177 Amendment of s 48 (Protection from liability) . . . . . . . . . . . . . . . . . . . . . . . 93 PART 4--AMENDMENT OF LAND ACT 1994 178 Act amended in pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 179 Amendment of s 385 (Acts by attorneys) . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 PART 5--AMENDMENT OF PROPERTY LAW ACT 1974 180 Act amended in pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 181 Omission of pt 9 (Powers of attorney) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 PART 6--AMENDMENT OF PUBLIC TRUSTEE ACT 1978 182 Act amended in pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
9 Powers of Attorney 183 Insertion of new s 63A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 63A Adult guardian resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 96 PRINCIPLES PART 1--GENERAL PRINCIPLES 1 Presumption of capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 2 Same human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 3 Individual value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 4 Valued role as member of society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 5 Participation in community life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 6 Encouragement of self-reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 7 Maximum participation, minimal limitations and substituted judgment . . 97 8 Maintenance of existing supportive relationships . . . . . . . . . . . . . . . . . . . . . 98 9 Maintenance of environment and values . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 10 Appropriate to circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 11 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 PART 2--HEALTH CARE PRINCIPLE 12 Health care principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . 101 TYPES OF MATTERS PART 1--FINANCIAL MATTERS 1 Financial matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 PART 2--PERSONAL MATTER 2 Personal matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 3 Special personal matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 4 Health matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 5 Health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 6 Special health matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 7 Special health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 8 Removal of tissue for donation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 9 Sterilisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 10 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
10 Powers of Attorney 11 Primary reason for treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 12 Life-sustaining measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . 108 DICTIONARY
1997 A BILL FOR An Act consolidating, amending and reforming the law about general powers of attorney and enduring powers of attorney and providing for advance health directives, and for other purposes
s1 12 s5 Powers of Attorney The Parliament of Queensland enacts-- 1 HAPTER 1--PRELIMINARY 2 C title 3 Short 1. This Act may be cited as the Powers of Attorney Act 1997. 4 5 Commencement 2. This Act commences on a day to be fixed by proclamation. 6 7 Dictionary 3. The dictionary in schedule 3 defines particular words used in this Act.1 8 binds all persons 9 Act 4. This Act binds all persons, including the State, and, so far as the 10 legislative power of the Parliament permits, the Commonwealth and the 11 other States. 12 overview 13 General 5.(1) An "attorney" is a person who is authorised to make certain 14 1 In some Acts, definitions are contained in a dictionary that appears as the last schedule and forms part of the Act--Acts Interpretation Act 1954, section 14(4). Words defined elsewhere are generally signposted by entries in the dictionary. However, if a section has a definition applying only to the section, or a part of the section, it is generally not signposted by an entry in the dictionary and is generally set out in the last subsection of the section. Signpost definitions in the dictionary alert the reader to the terms defined elsewhere in the Act and tell the reader where the definitions can be found. For example, the definition ` "eligible attorney" see section 29.' tells the reader there is a definition of eligible attorney in the section.
s6 13 s6 Powers of Attorney decisions and do certain other things for another person (the "principal"). 1 (2) After the commencement of this Act, principals may authorise 2 attorneys by-- 3 (a) general powers of attorney, enduring powers of attorney or 4 advance health directives; or 5 (b) powers of attorney under the common law. 6 (3) In addition to replacing the statutory provisions for powers of 7 attorney and enduring powers of attorney,2 this Act introduces advance 8 health directives and statutory health attorneys. 9 (4) An advance health directive is a document containing directions for a 10 principal's future health care and special health care and may authorise an 11 attorney to do certain things for the principal in relation to health care.3 12 (5) A statutory health attorney is the person authorised by this Act4 to do 13 certain things for a principal in certain circumstances in relation to health 14 care.5 15 of Act 16 Scope 6. Except where otherwise provided, this Act applies only to documents 17 made, whether under this Act6 or otherwise, after the commencement of 18 this Act. 19 2 The Property Law Act 1974, part 9 (Powers of attorney) is repealed by section 181. However, see section 162 (Powers of attorney under Property Law Act 1974) for a transitional provision. 3 Advance health directives are dealt with in chapter 3. 4 See section 61 (Statutory health attorney). 5 See section 89(5) (Principal with impaired capacity--order of priority in dealing with special health or health matter). 6 A general power of attorney, or enduring power of attorney, made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be a general power of attorney, or enduring power of attorney, made under this Act--section 162.
s7 14 s9 Powers of Attorney CHAPTER 2--POWERS OF ATTORNEY OTHER 1 THAN ENDURING POWERS OF ATTORNEY 2 PART 1--INTRODUCTION 3 of ch 2 4 Application 7.(1) This chapter does not apply to enduring powers of attorney. 5 (2) Except where otherwise provided, this chapter applies to all other 6 powers of attorney made, whether under this Act7 or otherwise, after the 7 commencement of this Act.8 8 of attorney 9 Powers 8. By a "general power of attorney made under this Act", a person 10 ("principal") may-- 11 (a) authorise 1 or more other persons ("attorneys") to do for the 12 principal anything (other than exercise power for a personal 13 matter9) that the principal can lawfully do by an attorney; and 14 (b) provide terms or information about exercising the power. 15 attorney's power exercisable 16 When 9.(1) A principal may specify in a power of attorney a time when, 17 circumstance in which, or occasion on which, the power is exercisable. 18 (2) However, if the power of attorney does not specify a time when, 19 7 A general power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be a general power of attorney made under this Act--section 162. 8 For provisions applying to attorneys, see chapter 5 (Exercising power for a principal), part 1 (Provisions applying to attorneys). 9 Only an attorney under an enduring power of attorney may exercise power for a personal matter for a principal.
s 10 15 s 10 Powers of Attorney circumstance in which, or occasion on which, the power is exercisable, the 1 power becomes exercisable once the power of attorney is made. 2 of attorney given as security 3 Powers 10.(1) A "power of attorney given as security" is a power of attorney 4 (other than an enduring power of attorney)-- 5 (a) whether made under this Act or otherwise and whether made 6 before or after the commencement of this Act; and 7 (b) given by a principal as security for a proprietary interest of the 8 attorney or the performance of an obligation owed to the attorney; 9 and 10 (c) that states it is irrevocable. 11 (2) Despite chapter 2, part 3, a power of attorney given as security is 12 incapable of revocation except with the consent of the attorney while-- 13 (a) the attorney has the proprietary interest, or persons deriving title 14 to the interest under the attorney have the proprietary interest, 15 secured by the power of attorney; or 16 (b) the obligation, the performance of which is secured by the power 17 of attorney, remains undischarged.10 18 (3) A power of attorney given as security for a proprietary interest may 19 be given to-- 20 (a) the person entitled to the interest and the persons deriving title 21 under the person to the interest; or 22 (b) a representative of a person mentioned in paragraph (a) who may 23 be a specified officer, or the holder of a specified office,11 by 24 reference to the title of the office concerned. 25 (4) The persons deriving title are taken to be attorneys of the power of 26 attorney for all purposes. 27 10 Also, revocation by attorney provisions dealing with revocation because of impaired capacity, bankruptcy or insolvency or death of an attorney (sections 22 to 24) do not apply to powers of attorney given as security. 11 "^@Office"^@ includes position--see Acts Interpretation Act 1954, section 36.
s 11 16 s 12 Powers of Attorney (5) Subsection (4) does not affect a right in the power of attorney to 1 appoint substitute attorneys. 2 (6) The power of a registered proprietor under the Land Title Act 1994 to 3 revoke a power of attorney is subject to this section. 4 PART 2--MAKING A POWER OF ATTORNEY 5 OTHER THAN AN ENDURING POWER OF 6 ATTORNEY 7 of general power of attorney made under Act 8 Form 11. A general power of attorney made under this Act must be in the 9 approved form.12 10 of powers of attorney 11 Execution 12.(1) This section does not apply to a power of attorney created by and 12 contained in another instrument, for example, a mortgage or lease, that is 13 signed by, or by direction of, the principal. 14 (2) An instrument creating a power of attorney must be signed by, or by 15 direction and in the presence of, the principal. 16 (3) This section does not affect-- 17 (a) a requirement in or having effect under another Act about 18 witnessing of instruments creating powers of attorney; or 19 (b) the rules about the execution of instruments by corporations. 20 12 An approved form is a form approved by the chief executive under section 160--schedule 3 (Dictionary). Strict compliance with the form is not necessary and substantial compliance is sufficient--Acts Interpretation Act 1954, section 49 (Forms).
s 13 17 s 14 Powers of Attorney of 1 or more attorneys 1 Appointment 13.(1) By a general power of attorney made under this Act, a principal 2 may-- 3 (a) appoint 1 attorney, or more than 1 attorney, being joint or several, 4 or joint and several, attorneys; and 5 (b) appoint as attorney-- 6 (i) a person by name; or 7 (ii) a specified officer, or the holder of a specified office, 13 by 8 reference to the title of the office concerned. 9 (2) If a specified officer or the holder of a specified office is appointed as 10 an attorney-- 11 (a) the appointment does not cease to have effect merely because the 12 person who was the specified officer or the holder of the specified 13 office when the appointment was made ceases to be the officer or 14 the holder of the office; and 15 (b) the power may be exercised by the person for the time being 16 occupying or acting in the office concerned. 17 of power of attorney 18 Proof 14.(1) A power of attorney may be proved by a copy of the power of 19 attorney certified under this section. 20 (2) Each page, other than the last page, of the copy must be certified to 21 the effect that the copy is a true and complete copy of the corresponding 22 page of the original. 23 (3) The last page of the copy must be certified to the effect that the copy 24 is a true and complete copy of the original. 25 (4) Certification must be by 1 of the following persons-- 26 (a) the principal; 27 13 "Office" includes position--see Acts Interpretation Act 1954, section 36.
s 14 18 s 14 Powers of Attorney (b) a justice;14 1 (c) a commissioner for declarations; 2 (d) a notary public; 3 (e) a lawyer;15 4 (f) a trustee company under the Trustee Companies Act 1968; 5 (g) a stockbroker. 6 (5) If a copy of a power of attorney has been certified under this section, 7 the power of attorney may also be proved by a copy, certified under this 8 section, of the certified copy. 9 (6) This section does not prevent a power of attorney being proved in 10 another way. 11 (7) This section also applies to a power of attorney made before the 12 commencement of this Act.16 13 14 "Justice" means justice of the peace--see Acts Interpretation Act 1954, section 36. 15 "Lawyer" means a barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or the Supreme Court of a State (including the Australian Capital Territory and the Northern Territory)--see Acts Interpretation Act 1954, sections 33A and 36. 16 See also section 7 (Application of ch 2).
s 15 19 s 17 Powers of Attorney ART 3--REVOKING A POWER OF ATTORNEY 1 P OTHER THAN AN ENDURING POWER OF 2 ATTORNEY 3 Division 1--Introduction 4 with other law 5 Relationship 15. This part does not limit the events by which, or circumstances in 6 which, a power of attorney is revoked orally or in another way or 7 terminated by implication or operation of law. 8 Division 2--Revocation by principal 9 of revocation 10 Advice 16. If a power of attorney is revoked under this division, the principal 11 must take reasonable steps-- 12 (a) to advise all attorneys affected by the revocation; and 13 (b) for a power of attorney registered in the power of attorney 14 register--to deregister it. 15 revocation 16 Written 17.(1) If a power of attorney is or becomes revocable, it may be revoked 17 by an instrument in the approved form executed in the same way as the 18 power of attorney. 19 (2) Subsection (1) does not affect the rules about the execution of 20 instruments by corporations. 21 (3) This section also applies to a power of attorney made before the 22 commencement of this Act.17 23 17 See also section 7 (Application of ch 2).
s 18 20 s 20 Powers of Attorney capacity 1 Impaired 18.(1) If a principal becomes a person who has impaired capacity, the 2 power of attorney is revoked.18 3 (2) However, if a principal becomes incommunicate, the court may by 4 order confirm that, from the date of the order, all or part of the power of 5 attorney remains in full force and effect if the court is satisfied that the 6 confirmation is for the benefit of the principal. 7 (3) For this section, a person becomes "incommunicate" if the person 8 becomes incapable of communicating decisions about the person's 9 financial, property or legal affairs in some way. 10 11 Death 19. When a principal dies, the power of attorney is revoked. 12 Division 3--Revocation according to terms 13 to terms 14 According 20. A power of attorney is revoked according to its terms. 15 16 Examples-- 17 1. If a power of attorney is expressed to operate for or during a specified period, it 18 is revoked at the end of the period. 19 2. If a power of attorney is expressed to operate for a specific purpose, it is 20 revoked when the purpose is achieved. 18 However, for a power of attorney given as security, see section 10.
s 21 21 s 23 Powers of Attorney Division 4--Revocation by attorney 1 2 Resignation 21. If an attorney resigns,19 the power of attorney is revoked to the extent 3 it gives power to the attorney. 4 capacity 5 Impaired 22. If an attorney becomes a person who has impaired capacity, the 6 power of attorney is revoked to the extent it gives power to the attorney.20 7 or insolvency 8 Bankruptcy 23.(1) If an individual attorney becomes bankrupt or insolvent or takes 9 advantage of the laws of bankruptcy as a debtor under the Bankruptcy 10 Act 1966 (Cwlth) or a similar law of a foreign jurisdiction, the power of 11 attorney is revoked to the extent it gives power to the attorney.21 12 (2) If a corporate attorney is wound up or dissolved or a receiver (other 13 than a receiver for a limited purpose) or administrator is appointed of the 14 attorney, the power of attorney is revoked to the extent it gives power to the 15 attorney. 16 17 Example-- 18 X is an attorney under a power of attorney that is not given as security. X 19 becomes bankrupt. Therefore, the power of attorney is revoked to the extent it gives 20 power to X. 21 If X was a joint and several attorney with Y, the power of attorney is only revoked 22 to the extent it gives power to X. Y can continue to exercise the power. 23 The same applies if X was a joint attorney with Y because of section 67.22 19 An attorney may resign by signed notice to the principal--section 71(1). 20 However, for a power of attorney given as security, see section 10. 21 However, for a power of attorney given as security, see section 10. 22 Section 67 (Effect of disqualification of 1 joint attorney) allows the remaining joint attorney to exercise a power that another joint attorney is unable to exercise.
s 24 22 s 25 Powers of Attorney 1 If X was not a joint and several attorney and the power of attorney gives power to 2 an alternative or successive attorney, the alternative or next attorney may then 3 exercise power. 4 If none of these apply, no one is able to exercise power under the power of 5 attorney. 6 Death 24. When an attorney dies, the power of attorney is revoked to the extent 7 it gives power to the attorney.23 8 PART 4--OTHER PROVISIONS 9 of powers of attorney and instruments revoking powers 10 Registration 25.(1) A power of attorney may be registered. 11 (2) An instrument revoking a power of attorney may be registered. 12 (3) Subject to another Act or a contrary intention in the power of 13 attorney, if the power of attorney has been registered under an Act, it does 14 not cease to authorise the attorney to do for the principal anything relevant to 15 the purpose for which it was registered until an instrument revoking the 16 power of attorney has been registered. 17 (4) This section also applies to a power of attorney made before the 18 commencement of this Act.24 19 23 If the deceased was a joint attorney, section 67 (Effect of disqualification of 1 joint attorney) allows the remaining joint attorney or attorneys to exercise the power. However, for a power of attorney given as security, see section 10. 24 See also section 7 (Application of ch 2).
s 26 23 s 29 Powers of Attorney to dishonestly induce the making or revocation of power of 1 Offence attorney 2 26.(1) A person must not dishonestly induce a person to make or revoke 3 a power of attorney. 4 Maximum penalty--200 penalty units. 5 (2) This section also applies to a power of attorney made before the 6 commencement of this Act.25 7 HAPTER 3--ENDURING DOCUMENTS 8 C ART 1--APPLICATION AND INTERPRETATION 9 P of ch 3 10 Application 27. Except where otherwise provided, this chapter applies only to 11 enduring documents. 12 of "enduring document" 13 Meaning 28. An "enduring document" is an enduring power of attorney26 or an 14 advance health directive. 15 of "eligible attorney" 16 Meaning 29.(1) An "eligible attorney", for a matter under an enduring power of 17 attorney, means-- 18 (a) a person who is-- 19 (i) at least 18 years; and 20 25 See also section 7 (Application of ch 2). 26 An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be an enduring power of attorney made under this Act--section 162.
s 30 24 s 30 Powers of Attorney (ii) not a paid carer, or health provider, for the principal;27 and 1 (iii) if the person would be given power for a financial 2 matter--not bankrupt or taking advantage of the laws of 3 bankruptcy as a debtor under the Bankruptcy Act 1966 4 (Cwlth) or a similar law of a foreign jurisdiction; or 5 (b) the public trustee; or 6 (c) a trustee company under the Trustee Companies Act 1968; or 7 (d) for a personal matter only--the adult guardian. 8 (2) An "eligible attorney", for a matter under an advance health 9 directive, means-- 10 (a) a person who has capacity for the matter who is-- 11 (i) at least 18 years; and 12 (ii) not a paid carer, or health provider, for the principal;28 and 13 (iii) if the person would be given power for a financial 14 matter--not bankrupt or taking advantage of the laws of 15 bankruptcy as a debtor under the Bankruptcy Act 1966 16 (Cwlth) or a similar law of a foreign jurisdiction; or 17 (b) the public trustee; or 18 (c) the adult guardian. 19 of "eligible signer" 20 Meaning 30.(1) An "eligible signer", to sign a document for a principal, is a 21 person who-- 22 (a) is at least 18 years; and 23 (b) is not the witness for the document; and 24 (c) is not, or if the document is all or part of an enduring document, 25 will not by the enduring document be, an attorney of the principal. 26 (2) To avoid doubt, it is declared that a person is not excluded from being 27 27 "Paid carer" and "health provider" are defined in schedule 3 (Dictionary). 28 "Paid carer" and "health provider" are defined in schedule 3 (Dictionary).
s 31 25 s 31 Powers of Attorney an eligible signer merely because the person is an employee of the principal 1 acting in the ordinary course of business. 2 of "eligible witness" 3 Meaning 31.(1) An "eligible witness", for a document, is a person who-- 4 (a) except for a document revoking an advance health directive--is a 5 justice,29 commissioner for declarations, notary public or 6 lawyer;30 and 7 (b) is not the person signing the document for the principal; and 8 (c) is not, or, if the document is all or part of an enduring document, 9 will not by the enduring document be, an attorney of the principal; 10 and 11 (d) is not a relation of-- 12 (i) the principal; or 13 (ii) an attorney of the principal; or 14 (iii) if the document is all or part of an enduring document, a 15 person who will be an attorney under the enduring 16 document; and 17 (e) if the document gives power for a personal matter--is not a paid 18 carer or health provider of the principal. 19 (2) To avoid doubt, it is declared that a person is not excluded from being 20 an eligible witness merely because the person is an employee of the 21 principal acting in the ordinary course of business. 22 29 "Justice" means justice of the peace--see Acts Interpretation Act 1954, section 36. 30 "Lawyer" means a barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or the Supreme Court of a State (including the Australian Capital Territory and the Northern Territory)--see Acts Interpretation Act 1954, sections 33A and 36.
s 32 26 s 33 Powers of Attorney ART 2--ENDURING POWER OF ATTORNEY 1 P PROVISIONS 2 powers of attorney 3 Enduring 32.(1) By an "enduring power of attorney", an adult ("principal") 4 may-- 5 (a) authorise 1 or more other persons who are eligible attorneys 6 ("attorneys") to do anything in relation to 1 or more financial 7 matters or personal matters31 for the principal that the principal 8 could lawfully do by an attorney if the adult had capacity for the 9 matter when the power is exercised; and 10 (b) provide terms or information about exercising the power. 11 (2) An enduring power of attorney32 giving power for a matter is not 12 revoked by the principal becoming a person with impaired capacity for the 13 matter. 14 attorney's power exercisable 15 When 33.(1) A principal may specify in an enduring power of attorney a time 16 when, circumstance in which, or occasion on which, a power for a financial 17 matter is exercisable. 18 (2) However, if the enduring power of attorney does not specify a time 19 when, circumstance in which, or occasion on which, power for a financial 20 matter becomes exercisable, the power becomes exercisable once the 21 enduring power of attorney is made. 22 (3) Also, if-- 23 (a) a time when, circumstance in which, or occasion on which, 24 power for a financial matter is exercisable is specified; and 25 31 "Personal matters" includes health matters but does not include special personal matters or special health matters--schedule 2, section 2. 32 An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be an enduring power of attorney made under this Act--section 162.
s 34 27 s 35 Powers of Attorney (b) before the specified time, circumstance or occasion, the principal 1 has impaired capacity for the matter; 2 power for the matter is exercisable during any or every period the principal 3 has the impaired capacity. 4 (4) Power for a personal matter under the enduring power of attorney is 5 exercisable during any or every period the principal has impaired capacity 6 for the matter and not otherwise.33 7 (5) If an attorney's power for a matter depends on the principal having 8 impaired capacity for a matter, a person dealing with the attorney may ask 9 for evidence, for example, a medical certificate, to establish that the principal 10 has the impaired capacity. 11 of enduring power of attorney made in other States 12 Recognition 34. If an enduring power of attorney is made in another State and 13 complies with the requirements in the other State, then, to the extent the 14 powers it gives could validly have been given by an enduring power of 15 attorney made under this Act, the enduring power of attorney must be 16 treated as if it were an enduring power of attorney made under, and in 17 compliance with, this Act. 18 PART 3--ADVANCE HEALTH DIRECTIVE 19 PROVISIONS 20 health directives 21 Advance 35.(1) By an "advance health directive", an adult principal may-- 22 (a) give directions, about health matters and special health matters, 23 for his or her future health care; and 24 (b) give information about his or her directions; and 25 33 However, the priority of an attorney's power for a health matter is decided by section 89 (Principal with impaired capacity--order of priority in dealing with special health or health matter)--see, in particular, section 89(4).
s 36 28 s 36 Powers of Attorney (c) appoint 1 or more persons who are eligible attorneys to exercise 1 power for a health matter34 for the principal in the event the 2 directions prove inadequate; and 3 (d) provide terms or information about exercising the power. 4 (2) Without limiting subsection (1), by an advance health directive the 5 principal may give a direction-- 6 (a) consenting, in the circumstances specified, to particular future 7 health care of the principal when necessary and despite objection 8 by the principal when the health care is provided; and 9 (b) requiring, in the circumstances specified, particular life-sustaining 10 measures to be withheld or withdrawn; and 11 (c) authorising an attorney to physically restrain, move or manage the 12 principal, or have the principal physically restrained, moved or 13 managed, for the purpose of health care when necessary and 14 despite objection by the principal when the restraint, movement or 15 management is provided. 16 (3) A direction in an advance health directive has priority over a general 17 or specific power for health matters given to any attorney. 18 (4) An advance health directive is not revoked by the principal becoming 19 a person with impaired capacity. 20 of advance health directive 21 Operation 36.(1) A direction in an advance health directive-- 22 (a) operates only while the principal has impaired capacity for the 23 matter covered by the direction; and 24 (b) is as effective as if-- 25 (i) the principal gave the direction when decisions about the 26 matter needed to be made; and 27 (ii) the principal then had capacity for the matter.35 28 34 Note this does not include a special health matter. 35 See also section 100 (No less protection than if adult gave health consent).
s 37 29 s 39 Powers of Attorney (2) An attorney's power for a health matter under an advance health 1 directive is exercisable during any or every period the principal has impaired 2 capacity for the matter and not otherwise.36 3 (3) While power for a health matter is exercisable under an advance 4 health directive, the directive gives the attorney for the matter power to do, 5 for the principal, anything in relation to the matter the principal could 6 lawfully do if the principal had capacity for the matter. 7 (4) However, the power given is subject to the terms of the advance 8 health directive and this Act. 9 (5) A person dealing with the attorney may ask for evidence, for 10 example, a medical certificate, to establish that the principal has impaired 11 capacity for the matter. 12 relationship with Mental Health Act 13 Act's 37.(1) For a person liable to be detained under the Mental Health Act 14 1974 who has given a direction about the person's health care or special 15 health care, whether by giving a direction in an advance health directive or 16 otherwise, an interpretation of that Act that is consistent with this Act and 17 the direction is to be preferred to any other meaning. 18 (2) However, the Mental Health Act 1974 prevails in the case of 19 inconsistency. 20 law not affected 21 Common 38. This Act does not affect common law recognition of instructions 22 about health care given by an adult that are not given in an advance health 23 directive. 24 of enduring health care document made in other States 25 Recognition 39. If a document prescribed by regulation is made in another State and 26 complies with the requirements for the document in the other State, then, to 27 36 However, the priority of an attorney's power is decided by section 89 (Principal with impaired capacity--order of priority in dealing with special health or health matter)--see, in particular, section 89(4).
s 40 30 s 40 Powers of Attorney the extent the document's provisions could have been validly included in an 1 advance health directive made under this Act, the document must be treated 2 as if it were an advance health directive made under, and in compliance 3 with, this Act. 4 ART 4--MAKING AN ENDURING DOCUMENT 5 P capacity to make an enduring power of attorney 6 Principal's 40.(1) A principal may make an enduring power of attorney only if the 7 principal understands the nature and effect of the enduring power of 8 attorney.37 9 (2) Understanding the nature and effect of the enduring power of attorney 10 includes understanding the following matters38-- 11 (a) the principal may, in the power of attorney, specify or limit the 12 power to be given to an attorney and instruct an attorney about the 13 exercise of the power; 14 (b) when the power begins; 15 (c) once the power for a matter begins, the attorney has power to 16 make, and will have full control over, the matter subject to terms 17 or information about exercising the power included in the 18 enduring power of attorney; 19 (d) the principal may revoke the enduring power of attorney at any 20 time the principal is capable of making an enduring power of 21 attorney giving the same power; 22 (e) the power the principal has given continues even if the principal 23 becomes a person who has impaired capacity; 24 37 However, under the general principles, a person is presumed to have capacity--schedule 1, section 1. 38 If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood these matters.
s 41 31 s 42 Powers of Attorney (f) at any time the principal is not capable of revoking the enduring 1 power of attorney, the principal is unable to effectively oversee 2 the use of the power. 3 capacity to make an advance health directive 4 Principal's 41.(1) A principal may make an advance health directive, to the extent it 5 does not give power to an attorney, only if the principal understands the 6 following matters39-- 7 (a) the nature and the likely effects of each direction in the advance 8 health directive; 9 (b) a direction operates only while the principal has impaired capacity 10 for the matter covered by the direction; 11 (c) the principal may revoke a direction at any time the principal has 12 capacity for the matter covered by the direction; 13 (d) at any time the principal is not capable of revoking a direction, the 14 principal is unable to effectively oversee the implementation of 15 the direction. 16 (2) A principal may make an advance health directive, to the extent it 17 gives power to an attorney, only if the principal also understands the matters 18 necessary to make an enduring power of attorney giving the same power.40 19 of 1 or more eligible attorneys 20 Appointment 42.(1) Only a person who is an eligible attorney41 may be appointed as 21 an attorney by an enduring document. 22 (2) A principal may appoint 1 or more of the following-- 23 (a) 1 attorney for 1 or more, or all, matters; 24 (b) different attorneys for different matters; 25 39 If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood these matters. 40 See section 40 (Principal's capacity to make an enduring power of attorney). 41 See section 29 (Meaning of "eligible attorney").
s 43 32 s 43 Powers of Attorney (c) a person to act as an attorney for a matter in a circumstance stated 1 in the enduring document; 2 (d) alternative attorneys for a matter so power is given to a particular 3 attorney only in a circumstance stated in the enduring document; 4 (e) successive attorneys for a matter so power is given to a particular 5 attorney only when power given to another attorney ends; 6 (f) joint or several, or joint and several, attorneys for a matter; 7 (g) 2 or more joint attorneys for a matter (being a number less than 8 the total number of attorneys for the matter). 9 requirements 10 Formal 43.(1) An enduring power of attorney must be in an approved form.42 11 (2) An advance health directive must be written and may be in the 12 approved form. 13 (3) An enduring document must-- 14 (a) be signed-- 15 (i) by the principal; or 16 (ii) if the principal instructs--for the principal and in the 17 principal's presence, by an eligible signer;43 and 18 (b) be signed and dated by an eligible witness.44 19 (4) If an enduring document is signed by the principal, it must include a 20 certificate signed by the witness stating the principal-- 21 (a) signed the enduring document in the witness's presence; and 22 42 An approved form is a form approved by the chief executive under section 160--schedule 3 (Dictionary). 43 See section 30 (Meaning of "eligible signer"). 44 See section 31 (Meaning of "eligible witness"). It is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood the necessary matters. For a power of attorney--see section 40 and for an advance health directive--see section 41.
s 44 33 s 44 Powers of Attorney (b) at the time, appeared to the witness to have the capacity necessary 1 to make the enduring document. 2 (5) If an enduring document is signed by a person for the principal, it 3 must include a certificate signed by the witness stating-- 4 (a) the principal, in the witness's presence, instructed the person to 5 sign the enduring document for the principal; and 6 (b) the person signed it in the presence of the principal and witness; 7 and 8 (c) the principal, at the time, appeared to the witness to have the 9 capacity necessary to make the enduring document. 10 (6) An enduring document is effective in relation to an attorney only if 11 the attorney has accepted the appointment by signing the enduring 12 document. 13 of enduring document 14 Proof 44.(1) An enduring document45 may be proved by a copy of the 15 enduring document certified under this section. 16 (2) Each page, other than the last page, of the copy must be certified to 17 the effect that the copy is a true and complete copy of the corresponding 18 page of the original. 19 (3) The last page of the copy must be certified to the effect that the copy 20 is a true and complete copy of the original. 21 (4) Certification must be by 1 of the following persons-- 22 (a) the principal; 23 (b) a justice;46 24 (c) a commissioner for declarations; 25 (d) a notary public; 26 45 An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be an enduring power of attorney made under this Act--section 162. 46 "Justice" means justice of the peace--see Acts Interpretation Act 1954, section 36.
s 45 34 s 46 Powers of Attorney (e) a lawyer;47 1 (f) a trustee company under the Trustee Companies Act 1968; 2 (g) a stockbroker. 3 (5) If a copy of an enduring document has been certified under this 4 section, the enduring document may also be proved by a copy, certified 5 under this section, of the certified copy. 6 (6) This section does not prevent an enduring document being proved in 7 another way. 8 PART 5--REVOKING AN ENDURING DOCUMENT 9 Division 1--Revocation by principal 10 of revocation 11 Advice 45. If an enduring document48 is revoked under this division, the 12 principal must take reasonable steps-- 13 (a) to advise all attorneys under the enduring document of its 14 revocation; and 15 (b) for an enduring power of attorney registered under the Land Title 16 Act 1994--to deregister it. 17 capacity for written revocation of power of attorney 18 Principal's 46.(1) A principal may revoke an enduring power of attorney in writing 19 47 "Lawyer" means a barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or the Supreme Court of a State (including the Australian Capital Territory and the Northern Territory)--see Acts Interpretation Act 1954, sections 33A and 36. 48 An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be an enduring power of attorney made under this Act--section 162.
s 47 35 s 48 Powers of Attorney only if the principal has the capacity necessary to make an enduring power 1 of attorney giving the same power.49 2 (2) However, a principal may revoke an enduring power of attorney in 3 writing, to the extent it gives power for a health matter, if the principal has 4 the capacity necessary to make an enduring power of attorney giving the 5 same power for the health matter. 6 capacity for written revocation of advance health directive 7 Principal's 47.(1) A principal may revoke an advance health directive in writing, to 8 the extent it includes a direction about a health matter or special health 9 matter, only if the principal has capacity for the matter. 10 (2) A principal may revoke an advance health directive in writing, to the 11 extent it gives power to an attorney, only if the principal has the capacity 12 necessary to make an advance health directive giving the same power. 13 requirements for written revocation of enduring document 14 Formal 48.(1) A written revocation of an enduring power of attorney must be in 15 the approved form. 16 (2) However, a written revocation of an enduring power of attorney, to 17 the extent it gives power for a health matter, or a written revocation of an 18 advance health directive need not be in the approved form. 19 (3) The revocation of an enduring power of attorney must-- 20 (a) be signed-- 21 (i) by the principal; or 22 (ii) if the principal revoking it instructs--for the principal and in 23 the principal's presence, by an eligible signer;50 and 24 49 See section 40 (Principal's capacity to make an enduring power of attorney). 50 See section 30 (Meaning of "eligible signer").
s 49 36 s 49 Powers of Attorney (b) be signed and dated by an eligible witness.51 1 (4) If the revocation is signed by the principal, it may include a certificate 2 signed by the witness stating the principal-- 3 (a) signed the revocation in the witness's presence; and 4 (b) at the time, appeared to the witness to have the capacity necessary 5 for the revocation. 6 (5) If the revocation is signed by a person for the principal, it must 7 include a certificate signed by the witness stating-- 8 (a) the principal, in the witness's presence, instructed the person to 9 sign the revocation on the principal's behalf; and 10 (b) the person signed it in the presence of the principal and witness; 11 and 12 (c) the principal, at the time, appeared to the witness to have the 13 capacity necessary for the revocation. 14 enduring document 15 Later 49.(1) A principal's enduring power of attorney is revoked, to the extent 16 of an inconsistency, by a later enduring document of the principal. 17 18 Example-- 19 If a principal gives-- 20 (a) power for a matter to an attorney by an enduring power of attorney; and 21 (b) either-- 22 (i) power for the matter to a different attorney by a later enduring 23 power of attorney; or 24 (ii) a direction about the matter in a later advance health directive; 25 the earlier enduring power of attorney is revoked to the extent it gives power for the 26 matter. 51 See section 31 (Meaning of "eligible witness"). It is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood the necessary matters. For a power of attorney--see section 46 and for an advance health directive--see section 47.
s 50 37 s 53 Powers of Attorney (2) A principal's advance health directive is revoked, to the extent of an 1 inconsistency, by a later advance health directive.52 2 3 Death 50. When a principal dies, the enduring document is revoked. 4 5 Marriage 51. Unless there is a contrary intention expressed in the enduring 6 document, if a principal marries after making an enduring document, the 7 enduring document is revoked to the extent it gives power to someone other 8 than the principal's spouse. 9 10 Divorce 52. If a principal divorces after making an enduring document, the 11 enduring document is revoked to the extent it gives power to the divorced 12 spouse. 13 2--Revocation according to terms 14 Division to terms 15 According 53. An enduring document is revoked according to its terms. 16 17 Examples-- 18 1. If an enduring power of attorney is expressed to operate for or during a specified 19 period, it is revoked at the end of the period. 20 2. If an enduring power of attorney is expressed to operate for a specific purpose, 21 it is revoked when the purpose is achieved. 52 If there is a direction about a health matter in an advance health directive and a later enduring power of attorney giving an attorney power for the health matter, the direction prevails. See section 89 (Principal with impaired capacity--order of priority in dealing with special health or health matter).
s 54 38 s 56 Powers of Attorney Division 3--Revocation by attorney 1 2 Resignation 54. If an attorney resigns53 as attorney for a matter, the enduring 3 document is revoked to the extent it gives power to the attorney for the 4 matter. 5 capacity 6 Impaired 55. If an attorney for a matter becomes a person who has impaired 7 capacity for the matter, the enduring document is revoked to the extent it 8 gives power to the attorney for the matter. 9 or insolvency 10 Bankruptcy 56.(1) This section applies only to enduring powers of attorney. 11 (2) If an individual attorney for a financial matter becomes bankrupt or 12 insolvent or takes advantage of the laws of bankruptcy as a debtor under the 13 Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction, the 14 power of attorney is revoked to the extent it gives power for financial 15 matters to the attorney. 16 (3) If a corporate attorney is wound up or dissolved or a receiver (other 17 than a receiver for a limited purpose) or administrator is appointed of the 18 attorney, the power of attorney is revoked to the extent it gives power to the 19 attorney. 20 21 Example-- 22 Under an enduring power of attorney, X, an individual, exercises power for 23 financial matters generally. X becomes bankrupt. Therefore, the enduring power of 24 attorney is revoked to the extent it gives power for financial matters to X. 25 If X was a joint and several attorney with Y, the enduring power of attorney is 26 only revoked to the extent it gives power to X. Y can continue to exercise the power. 53 An attorney may resign by signed notice to the principal if the principal has capacity for the matter (section 71 (Resignation of attorney)) or otherwise with the court's leave (section 81 (Resignation of attorney while principal has impaired capacity)).
s 57 39 s 59 Powers of Attorney 1 The same applies if X was a joint attorney with Y because of section 67.54 2 If X was not a joint and several attorney and the enduring power of attorney gives 3 an alternative or successive attorney power for financial matters, the alternative or 4 next attorney then has power for financial matters. 5 If none of these apply, no one is able to exercise power for financial matters under 6 the enduring power of attorney. 7 Death 57. When an attorney dies, the enduring document is revoked to the 8 extent it gives power to the attorney.55 9 carer or health provider 10 Paid 58. If an attorney becomes a paid carer, or health provider, for the 11 principal, the enduring document is revoked to the extent it gives power for 12 a personal matter to the attorney.56 13 PART 6--OTHER PROVISIONS 14 of powers of attorney and instruments revoking powers 15 Registration 59.(1) An enduring power of attorney57 may be registered. 16 54 Section 67 (Effect of disqualification of 1 joint attorney) allows the remaining joint attorney to exercise a power that another joint attorney is unable to exercise. 55 If the deceased was a joint attorney, section 67 (Effect of disqualification of 1 joint attorney) allows the remaining joint attorney or attorneys to exercise the power. 56 If the paid carer, or health provider, was a joint attorney, section 67 (Effect of disqualification of 1 joint attorney) allows the remaining joint attorney or attorneys to exercise the power. 57 An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be an enduring power of attorney made under this Act--section 162.
s 60 40 s 62 Powers of Attorney (2) An instrument revoking an enduring power of attorney may be 1 registered. 2 (3) Subject to another Act, if an enduring power of attorney has been 3 registered, it may not, unless a different intention appears from the enduring 4 power of attorney, cease to authorise the attorney to deal with land for the 5 principal until an instrument revoking the enduring power of attorney has 6 been registered. 7 to dishonestly induce the making or revocation of enduring 8 Offence document 9 60. A person must not dishonestly induce a person to make or revoke an 10 enduring document. 11 Maximum penalty--200 penalty units. 12 CHAPTER 4--STATUTORY HEALTH 13 ATTORNEYS 14 health attorney 15 Statutory 61.(1) This Act authorises a statutory health attorney for an adult's health 16 matter58 to make any decision about the health matter that the adult could 17 lawfully make if the adult had capacity for the matter. 18 (2) A statutory health attorney's power for a health matter is exercisable 19 during any or every period the adult has impaired capacity for the matter.59 20 is the statutory health attorney 21 Who 62.(1) For a health matter, an adult's "statutory health attorney" is the 22 58 Note this does not include a special health matter. 59 However, the priority of an attorney's power is decided by section 89 (Principal with impaired capacity--order of priority in dealing with special health or health matter)--see, in particular, section 89(5).
s 63 41 s 63 Powers of Attorney first, in listed order, of the following people who is readily available and 1 culturally appropriate to exercise power for the matter-- 2 (a) a spouse60 of the adult if the relationship between the adult and 3 the spouse is close and continuing; 4 (b) a person who is 18 years or more and who has the care of the 5 adult and is not a paid carer for the adult; 6 (c) a person who is 18 years or more and who is a close friend or 7 relation of the adult and is not a paid carer for the adult. 8 (2) If no-one listed in subsection (1) is readily available and culturally 9 appropriate to exercise power for a matter, the adult guardian is the adult's 10 "statutory health attorney" for the matter. 11 (3) Without limiting who is a "person who has the care of the adult", 12 for this section, a person has the care of an adult if the person-- 13 (a) provides domestic services and support to the adult; or 14 (b) arranges for the adult to be provided with domestic services and 15 support. 16 (4) If an adult resides in an institution (for example, a hospital, nursing 17 home, group home, boarding-house or hostel) at which the adult is cared 18 for by another person, the adult-- 19 (a) is not, merely because of this fact, to be regarded as being in the 20 care of the other person; and 21 (b) remains in the care of the person in whose care the adult was 22 immediately before residing in the institution. 23 by adult guardian if dispute or contrary to health care 24 Intervention principle 25 63.(1) If-- 26 (a) there is more than 1 person eligible to be the statutory health 27 attorney under a paragraph of subsection 62(1) to exercise power 28 for a matter; and 29 60 "Spouse" includes a de facto spouse--schedule 3 (Dictionary).
s 64 42 s 64 Powers of Attorney (b) the eligible people disagree about which of them should be the 1 statutory health attorney or how the power should be exercised; 2 and 3 (c) the disagreement cannot be resolved by mediation by the adult 4 guardian; 5 the adult guardian may exercise the power. 6 (2) Also, if the statutory health attorney for a matter-- 7 (a) refuses to make a decision in a situation where the refusal is 8 contrary to the health care principle; or 9 (b) makes a decision that is contrary to the health care principle; 10 the adult guardian may exercise power for the matter. 11 HAPTER 5--EXERCISING POWER FOR A 12 C PRINCIPAL 13 PART 1--PROVISIONS APPLYING TO ATTORNEYS 14 of pt 1 15 Application 64. Except where otherwise provided, this part applies to an attorney 16 under-- 17 (a) a general power or attorney made under this Act;61 or 18 (b) an enduring document; or 19 (c) a power of attorney made otherwise than under this Act, whether 20 before or after its commencement. 21 61 A general power of attorney, or enduring power of attorney, made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be a general power of attorney, or enduring power of attorney, made under this Act--section 162.
s 65 43 s 68 Powers of Attorney honestly and with reasonable diligence 1 Act 65.(1) An attorney must exercise power honestly and with reasonable 2 diligence to protect the principal's interests. 3 Maximum penalty--200 penalty units. 4 (2) In addition to any other liability the attorney may incur, the court may 5 order the attorney to compensate the principal for a loss caused by the 6 attorney's failure to comply with subsection (1). 7 to terms of document 8 Subject 66. An attorney who may exercise a power under a document must, 9 when exercising the power, exercise it subject to the terms of the document. 10 of disqualification of 1 joint attorney 11 Effect 67. If 1 or more joint attorneys is disqualified from exercising a power 12 given to them-- 13 (a) the remaining attorney may exercise the power; and 14 (b) if 2 or more joint attorneys remain--the remaining attorneys 15 must exercise the power jointly. 16 of instrument etc. 17 Execution 68.(1) If necessary or convenient for the exercise of power given to an 18 attorney, the attorney may-- 19 (a) execute an instrument with the attorney's own signature and, 20 despite the fact that the power of attorney was given under hand, 21 if sealing is required or used, with the attorney's own seal; and 22 (b) do any other thing in the attorney's own name. 23 (2) An instrument executed by an attorney must be executed in a way 24 showing that the attorney executes it as attorney for the principal. 25 (3) An instrument executed, or thing done, in the way specified in this 26 section is as effective as if executed or done by the principal-- 27 (a) with the principal's signature; or 28
s 69 44 s 71 Powers of Attorney (b) with the principal's signature and seal; or 1 (c) in the principal's name. 2 (4) This section applies subject to the Property Law Act 1974, 3 section 46.62 4 to committee or manager 5 Subject 69.(1) If a person, other than an attorney, becomes committee or 6 manager of the principal, or all or part of a principal's estate, the attorney 7 may exercise the power only to the extent authorised by the committee or 8 manager. 9 (2) In this section-- 10 "attorney" includes a statutory health attorney. 11 exercise revoked power 12 Not 70. An attorney, who knows a power given to the attorney has been 13 revoked, must not exercise, or purport to exercise, the power. 14 Maximum penalty-- 200 penalty units. 15 of attorney 16 Resignation 71.(1) An attorney may resign as attorney for a matter by signed notice 17 given to the principal.63 18 (2) This section does not affect another way an attorney may resign 19 allowed by law.64 20 62 This section deals with the execution of documents by corporations. 63 However, for an enduring document, see also section 81 (Resignation of attorney while principal has impaired capacity). 64 For example, an attorney under a power of attorney made under the common law or the Property Law Act 1974, may resign orally.
s 72 45 s 73 Powers of Attorney conflict transaction 1 Avoid 72.(1) An attorney for a financial matter may enter into a conflict 2 transaction only if the principal authorises the transaction, conflict 3 transactions of that type or conflict transactions generally.65 4 (2) A "conflict transaction" is a transaction in which there may be 5 conflict, or which results in conflict, between-- 6 (a) the duty of an attorney towards the principal; and 7 (b) either-- 8 (i) the interests of the attorney, or a relation, business associate 9 or close friend of the attorney; or 10 (ii) another duty of the attorney. 11 12 Examples-- 13 1. A conflict transaction happens if an attorney for a financial matter buys the 14 principal's car. 15 2. A conflict transaction does not happen if an attorney for a financial matter is 16 acting under section 88 to maintain the principal's dependants. (3) However, a transaction is not a conflict transaction merely because by 17 the transaction the attorney in the attorney's own right and on behalf of the 18 principal-- 19 (a) deals with an interest in property jointly held; or 20 (b) acquires a joint interest in property; or 21 (c) obtains a loan or gives a guarantee or indemnity in relation to a 22 transaction mentioned in paragraph (a) or (b). 23 (4) In this section-- 24 "joint interest" includes an interest as a joint tenant or tenant in common. 25 of confidentiality 26 Preservation 73.(1) If a person gains confidential information because of being, or an 27 opportunity given by being, an attorney, the person must not make a record 28 of the information or intentionally or recklessly disclose the information to 29 65 However, see section 104 (Relief from personal liability).
s 74 46 s 74 Powers of Attorney anyone other than under subsection (2). 1 Maximum penalty--200 penalty units. 2 (2) A person may make a record of confidential information, or disclose 3 it to someone else-- 4 (a) to discharge a function under this Act or another law; or 5 (b) for a proceeding in a court or relevant tribunal; or 6 (c) if authorised under a regulation or another law; or 7 (d) if authorised by the person to whom the information relates; or 8 (e) if authorised by the court in the public interest because a person's 9 life or physical safety could otherwise reasonably be expected to 10 be endangered. 11 (3) This section also applies to a statutory health attorney. 12 (4) In this section-- 13 "confidential information" includes information about a person's affairs 14 but does not include-- 15 (a) information already publicly disclosed unless further disclosure 16 of the information is prohibited by law; or 17 (b) statistical or other information that could not reasonably be 18 expected to result in the identification of the person to whom the 19 information relates. 20 PART 2--PROVISIONS APPLYING TO ATTORNEYS 21 UNDER ENDURING DOCUMENTS AND 22 STATUTORY HEALTH ATTORNEYS 23 of pt 2 24 Application 74. Except where otherwise provided, this part applies to-- 25 (a) an attorney under an enduring document; and 26 (b) a statutory health attorney. 27
s 75 47 s 78 Powers of Attorney principles for adults with impaired capacity 1 General 75. The principles set out in schedule 1 (the "general principles" and, 2 for a health matter, the "health care principle") must be complied with by 3 a person or other entity who performs a function66 or exercises a power67 4 under this Act, or an enduring document, for a matter in relation to an adult 5 who has impaired capacity. 6 7 Example-- 8 If a principal of an enduring power of attorney or advance health directive has 9 impaired capacity for a matter, an attorney who may exercise power for the matter 10 must-- 11 (a) comply with the general principles; and 12 (b) if the matter is a health matter, also comply with the health care 13 principle. has maximum power if not otherwise stated 14 Attorney 76. To the extent an enduring document does not state otherwise, an 15 attorney is taken to have the maximum power that could be given to the 16 attorney by the enduring document. 17 18 Example-- 19 If an adult's enduring power of attorney merely states that `I appoint [full name] as 20 my attorney', the appointee is taken to have power for all financial matters and all 21 personal matters for the adult. attorneys are joint if not otherwise stated 22 Multiple 77. Two or more attorneys for a matter are appointed as joint attorneys 23 for the matter if the enduring document does not state how they are to share 24 the power given to them. 25 with principal's other attorneys 26 Consult 78.(1) If there are 2 or more attorneys, the attorneys must consult with 27 66 "Function" includes duty--see Acts Interpretation Act 1954, section 36. 67 "Power" includes authority--see Acts Interpretation Act 1954, section 36.
s 79 48 s 80 Powers of Attorney one another on a regular basis to ensure the principal's interests are not 1 prejudiced by a breakdown in communication between them. 2 (2) However, failure to comply with subsection (1) does not affect the 3 validity of an attorney's exercise of power. 4 (3) If 2 or more of the attorneys disagree about the way a power for a 5 matter should be exercised, 1 or more of the attorneys, or another interested 6 person, may apply for directions to the court. 7 8 Example-- 9 An adult chooses 1 attorney for all financial matters and another for all personal 10 matters. The attorney for personal matters considers the adult should remain at home 11 with in-house support rather than move to a residential care facility. However, the 12 attorney for financial matters does not want to authorise expenditure for in-house 13 support and considers it unreasonable. Either of the attorneys may apply to the court 14 for directions. together with joint attorneys 15 Act 79.(1) Attorneys who may exercise power for a matter jointly must 16 exercise the power unanimously unless the enduring document provides 17 otherwise. 18 (2) If it is impracticable or impossible to exercise the power 19 unanimously, 1 or more of the attorneys, or another interested person, may 20 apply for directions to the court. 21 of attorney to information 22 Right 80.(1) An attorney has a right to all the information that the principal 23 would have been entitled to if the principal had capacity and that is 24 necessary to make, for the principal, informed decisions about anything the 25 attorney is authorised to do. 26 (2) A person who has custody or control of the information must 27 disclose the information to the attorney on request. 28 (3) This section overrides-- 29 (a) any restriction, in an Act or the common law, about the disclosure 30 or confidentiality of information; and 31 (b) for an attorney under an enduring power of attorney--any claim 32
s 81 49 s 83 Powers of Attorney of confidentiality or privilege, including a claim based on legal 1 professional privilege; and 2 (c) for another attorney--any claim of confidentiality or privilege, 3 excluding a claim based on legal professional privilege. 4 of attorney while principal has impaired capacity 5 Resignation 81.(1) Despite section 71,68 while a principal has impaired capacity for a 6 matter, an attorney under an enduring document may only resign as 7 attorney for the matter with the court's leave. 8 (2) If the court gives leave for an attorney to resign for a matter, the court 9 may appoint a new attorney69 to replace the attorney for the matter. 10 ART 3--PROVISIONS ABOUT FINANCIAL 11 P MATTERS 12 13 Application 82. Except where otherwise provided, this part applies only to enduring 14 powers of attorney.70 15 to invest 16 Power 83.(1) This section does not apply to an enduring power of attorney 17 made under the Property Law 1974. 18 (2) An attorney for financial matters-- 19 (a) may invest in authorised investments; and 20 68 Section 71 (Resignation of attorney) 69 The court is not limited to appointing an "eligible attorney" (defined in section 29) as the new attorney. 70 An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be an enduring power of attorney made under this Act--section 162.
s 84 50 s 86 Powers of Attorney (b) if when the power became exercisable the principal had 1 investments that were not authorised investments--may continue 2 the investments, including by taking up rights to issues of new 3 shares, or options for new shares, to which the principal becomes 4 entitled by the principal's existing shareholding. 5 (3) In this section-- 6 "authorised investments" means investments authorised or permitted by 7 the Trusts Act 1973, or approved by the court, for the investment of 8 trust funds.71 9 records 10 Keep 84. An attorney for a financial matter must keep and preserve accurate 11 records and accounts of all dealings and transactions made under the 12 power.72 13 property separate 14 Keep 85.(1) An attorney for a financial matter must keep the attorney's 15 property separate from the principal's property. 16 (2) Subsection (1) does not apply to-- 17 (a) property owned jointly by the principal and attorney; or 18 (b) property acquired jointly by the principal and attorney in place of 19 property owned jointly by the principal and attorney. 20 (3) Subsection (1) does not affect another obligation imposed by law. 21 of undue influence 22 Presumption 86. The fact that a transaction is between a principal and 1 or more of the 23 following-- 24 (a) an attorney under an enduring power of attorney or advance 25 health directive; 26 71 See Trusts Act 1973, section 21 (Authorised investments). 72 See also sections 134 (Records and audit) and 136 (Power to summon).
s 87 51 s 88 Powers of Attorney (b) a relation, business associate or close friend of the attorney; 1 gives rise to a presumption in the principal's favour that the principal was 2 induced to enter the transaction by the attorney's undue influence. 3 4 Gifts 87.(1) Unless there is a contrary intention expressed in the enduring 5 power of attorney, an attorney for financial matters for an individual may 6 give away the principal's property only if-- 7 (a) the gift is-- 8 (i) to a relation or close friend of the principal; and 9 (ii) of a seasonal nature or because of a special event (including, 10 for example, a birth or marriage); or 11 (b) the gift is a donation of the nature that the principal made when 12 the principal had capacity or that the principal might reasonably be 13 expected to make; 14 and the gift's value is not more than what is reasonable having regard to all 15 the circumstances and, in particular, the principal's financial circumstances. 16 (2) The attorney or a charity with which the attorney has a connection is 17 not precluded from receiving a gift under subsection (1). 18 principal's dependants 19 Maintain 88.(1) An attorney for financial matters for an individual may provide 20 from the principal's estate for the needs of a dependant of the principal. 21 (2) However, unless there is a contrary intention expressed in the 22 enduring power of attorney, what is provided must not be more than what 23 is reasonable having regard to all the circumstances and, in particular, the 24 principal's financial circumstances. 25
s 89 52 s 90 Powers of Attorney ART 4--PROVISIONS ABOUT HEALTH MATTERS 1 P with impaired capacity--order of priority in dealing with 2 Principal special health or health matter 3 89.(1) If an adult has impaired capacity for a special health matter and the 4 adult has made an advance health directive giving a direction about the 5 matter, the matter may be dealt with under the direction. 6 (2) If an adult has impaired capacity for a health matter, the matter may 7 be dealt with under the first of the following subsections to apply. 8 (3) If the adult has made an advance health directive giving a direction 9 about the matter, the matter may be dealt with under the direction. 10 (4) If subsection (3) does not apply and the adult has made 1 or more 11 enduring documents appointing 1 or more attorneys for the matter, the 12 matter may be dealt with by the attorney or attorneys appointed by the most 13 recent enduring document. 14 (5) If subsections (3) and (4) do not apply, the matter may be dealt with 15 by the statutory health attorney.73 16 uncontroversial health care without consent 17 Minor, 90.(1) Health care (other than special consent health care) of an adult may 18 be carried out without consent if-- 19 (a) a health provider considers the adult has impaired capacity for a 20 decision about the health care; and 21 (b) the health provider considers there is no statutory health attorney 22 for the adult; and 23 (c) the health provider considers the health care is-- 24 (i) necessary to promote the adult's health and wellbeing; and 25 (ii) of the type that will best promote the adult's health and 26 wellbeing; and 27 (iii) minor and uncontroversial; and 28 73 See section 61 (Statutory health attorney).
s 91 53 s 91 Powers of Attorney (d) the health provider does not know, and can not reasonably be 1 expected to know, of any dispute among interested parties 2 about-- 3 (i) the carrying out of the health care; or 4 (ii) the adult's capacity for a decision about the health care; and 5 (e) the adult does not object to the health care. 6 (2) The health provider must certify in the adult's clinical records as to 7 the various things enabling the health care to be carried out because of this 8 section. 9 of adult's objection to health care 10 Effect 91.(1) Generally, the exercise of power for a health matter or a direction 11 in an advance health directive is ineffective to give consent to particular 12 health care of an adult if the health provider is aware, or ought reasonably to 13 be aware, the adult objects to the health care. 14 (2) However, the exercise of power for a health matter or a direction in 15 an advance health directive (other than a direction consenting to removal of 16 tissue for donation or consenting to research or experimental health care) is 17 effective to give consent to the health care despite an objection by the adult 18 to the health care if-- 19 (a) for a direction--the direction specifies that it operates despite 20 objection; or 21 (b) the adult has minimal or no understanding of 1 or both of the 22 following-- 23 (i) what the health care involves; 24 (ii) why the health care is required; and 25 the health care is likely to cause the adult-- 26 (iii) no distress; or 27 (iv) temporary distress that is outweighed by the benefit to the 28 adult of the health care. 29 (3) In this section-- 30 "object", by an adult, to health care means-- 31
s 92 54 s 94 Powers of Attorney (a) the adult indicates the adult does not wish to have the health care; 1 or 2 (b) the adult previously indicated, in similar circumstances, the adult 3 did not then wish to have the health care and since then the adult 4 has not indicated otherwise. 5 6 Example-- 7 An indication may be given in an enduring power of attorney or advance health 8 directive or in another way, including, for example, orally or by conduct. of force 9 Use 92. A health provider and a person acting under the health provider's 10 direction may use the minimum force that is necessary and reasonable to 11 carry out health care authorised under this Act. 12 to make decision for adult if no right to do so 13 Offence 93. It is an offence for a person who knows the person has no right to 14 exercise power for a health matter for an adult, or who is recklessly 15 indifferent about whether the person has a right to exercise power for a 16 health matter for the adult, to-- 17 (a) purport to exercise power for the health matter; or 18 (b) represent to a health provider for the adult that the person has a 19 right to exercise power for the health matter. 20 Maximum penalty--200 penalty units. 21 by adult guardian if dispute or contrary to health care 22 Intervention principle 23 94.(1) If-- 24 (a) attorneys disagree about how power for a health matter should be 25 exercised; and 26 (b) the disagreement cannot be resolved by mediation by the adult 27 guardian; 28 the adult guardian may exercise the power. 29
s 95 55 s 96 Powers of Attorney (2) Also, if an attorney for a health matter-- 1 (a) refuses to make a decision in a situation where the refusal is 2 contrary to the health care principle; or 3 (b) makes a decision that is contrary to the health care principle; 4 the adult guardian may exercise power for the health matter. 5 ART 5--PROTECTION AND RELIEF FROM 6 P LIABILITY 7 8 Interpretation 95. In this part-- 9 "invalidity", of a power under a document, means invalidity because-- 10 (a) the document was made in another State and does not comply 11 with the other State's requirements; or 12 (b) the power is not exercisable at the time it is purportedly exercised; 13 or 14 (c) the document has been revoked. 15 "know", of a power's invalidity, includes-- 16 (a) know of the happening of an event74 that invalidates the power; or 17 (b) have reason to believe the power is invalid. 18 if court advice, directions or recommendations 19 Protection 96. An attorney who acts in compliance with the court's advice, 20 directions or recommendations is taken to have complied with this Act 21 74 For example, a principal's enduring power of attorney is revoked if the principal dies (section 24) or, to the extent an attorney was given power, if the attorney becomes a health provider for the principal (section 58).
s 97 56 s 98 Powers of Attorney unless the attorney knowingly gave the court false or misleading 1 information relevant to the court's advice, directions or recommendations. 2 for attorney if unaware of invalidity 3 Protection 97.(1) This section applies to an attorney under-- 4 (a) a general power of attorney made under this Act; or 5 (b) an enduring document; or 6 (c) a power of attorney made otherwise than under this Act, whether 7 before or after its commencement. 8 (2) An attorney who, without knowing a power is invalid,75 purports to 9 exercise the power does not incur any liability, either to the principal or 10 anyone else, because of the invalidity. 11 for person dealing with attorney and next person if 12 Protection unaware of invalidity 13 98.(1) A person who-- 14 (a) deals with an attorney under a general power of attorney made 15 under this Act, or an enduring document, (the "document");76 16 and 17 (b) does not know, or have reason to believe, the principal did not 18 have capacity to make the document; 19 is entitled to rely on the certificate of the witness to the document as 20 evidence of the principal's capacity to make the document. 21 (2) A transaction between-- 22 (a) an attorney purporting to use a power that is invalid; and 23 (b) someone else (the "third person") who does not know of the 24 75 See section 112 (Declaration about validity). 76 A general power or attorney, or enduring power of attorney, made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be a general power of attorney, or enduring power of attorney, made under this Act--section 162.
s 99 57 s 100 Powers of Attorney invalidity; 1 is, in favour of the third person, as valid as if the power were not invalid. 2 (3) If the interest of a purchaser depends on whether a transaction 3 between an attorney and a third person was valid because of subsection (2), 4 it is conclusively presumed in favour of the purchaser that the third person 5 did not at the material time know of the invalidity of the attorney's power 6 if-- 7 (a) the third person makes a statutory declaration before or within 8 3 months after the completion of the purchase that the third 9 person did not at the material time know of the invalidity of the 10 attorney's power; or 11 (b) the transaction between the attorney and the third person was 12 completed within 1 year after the power of attorney was made. 13 (4) In subsections (2) and (3)-- 14 "attorney" means an attorney under-- 15 (a) a general power of attorney made under this Act; or 16 (b) an enduring document; or 17 (c) a power of attorney made otherwise than under this Act, whether 18 before or after its commencement. 19 protection if unaware of invalidity in health context 20 Additional 99. A person, other than an attorney, who, without knowing an advance 21 health directive or a power for a health matter under an enduring document 22 is invalid, acts in reliance on the directive or purported exercise of the 23 power, does not incur any liability, either to the adult or anyone else, 24 because of the invalidity. 25 less protection than if adult gave health consent 26 No 100. A person, other than an attorney, acting in accordance with a 27 direction in an advance health directive, or a decision of an attorney for a 28 health matter, is not liable for an act or omission to any greater extent than if 29 the act or omission happened with the principal's consent and the principal 30 had capacity to consent. 31
s 101 58 s 104 Powers of Attorney of health provider unaware of advance health directive 1 Protection 101. A health provider is not affected by an adult's advance health 2 directive to the extent the health provider does not know the adult has an 3 advance health directive. 4 of health provider for non-compliance with advance health 5 Protection directive 6 102.(1) This section applies if a health provider has reasonable grounds 7 to believe that a direction in an advance health directive is uncertain or that 8 circumstances, including advances in medical science, have changed to the 9 extent that the terms of the direction are inappropriate. 10 (2) The health provider does not incur any liability, either to the adult or 11 anyone else, if the health provider does not act in accordance with the 12 direction. 13 (3) However, if an attorney is appointed under the advance health 14 directive, the health provider has reasonable grounds to believe that a 15 direction in the advance health directive is uncertain only if, among other 16 things, the health provider has consulted the attorney about the direction. 17 of health provider acting in reliance on purported exercise 18 Protection of attorney's power 19 103.(1) To the extent a health provider giving health care to an adult 20 complies with a purported exercise of power for a health matter by a person 21 who represented to the health provider that the person had the right to 22 exercise the power for the adult, the health provider is taken to have the 23 adult's consent to the health care. 24 (2) Subsection (1) does not apply if the health provider knew, or could 25 reasonably be expected to have known, the person did not have the right to 26 exercise the power. 27 from personal liability 28 Relief 104.(1) If the court considers-- 29 (a) an attorney is, or may be, personally liable for a breach of this 30
s 105 59 s 105 Powers of Attorney Act; and 1 (b) the attorney has acted honestly and reasonably and ought fairly to 2 be excused for the breach; 3 the court may relieve the attorney from all or part of the attorney's personal 4 liability for the breach. 5 (2) In this section-- 6 "attorney" means-- 7 (a) an attorney under a general power of attorney made under this 8 Act; or 9 (b) an attorney under an enduring document; or 10 (c) an attorney under a power of attorney made otherwise than under 11 this Act, whether before or after its commencement; or 12 (d) a statutory health attorney. 13 ART 6--COMPENSATION 14 P for failure to comply 15 Compensation 105.(1) An attorney may be required by a court to compensate the 16 principal, or the principal's estate, for a loss caused by the attorney's failure 17 to comply with this Act in the exercise of a power. 18 (2) If either or both of the principal or attorney has died, the application 19 for compensation must be made to a court within 6 months after the first 20 happening. 21 (3) A court may extend the application time. 22 (4) Compensation paid under a court order must be taken into account in 23 assessing damages in a later civil proceeding in relation to the attorney's 24 exercise of the power. 25 (5) In this section-- 26 "attorney" means an attorney under-- 27
s 106 60 s 106 Powers of Attorney (a) a general power of attorney made under this Act; or 1 (b) an enduring document; or 2 (c) a power of attorney made otherwise than under this Act, whether 3 before or after its commencement. 4 "court" means any court. 5 to apply to court for compensation for loss of benefit in estate 6 Power 106.(1) This section applies if a person's benefit in a principal's estate 7 under the principal's will, on intestacy, or by another disposition taking 8 effect on the principal's death, is lost because of a sale or other dealing with 9 the principal's property by an attorney of the principal. 10 (2) The person, or the person's personal representative, may apply to the 11 Supreme Court for compensation out of the principal's estate. 12 (3) The court may order that the person, or the person's estate, be 13 compensated out of the principal's estate as the court considers appropriate 14 but the compensation must not exceed the value of the lost benefit. 15 (4) The Succession Act 1981, sections 41(2) to (8), (10) and (11) and 44 16 apply to an application and an order made on it as if the application was an 17 application under part 4 of that Act77 by a person entitled to make an 18 application. 19 (5) In this section-- 20 "attorney" means an attorney under-- 21 (a) a general power of attorney made under this Act; or 22 (b) an enduring document; or 23 (c) a power of attorney made otherwise than under this Act, whether 24 before or after its commencement. 25 77 Succession Act 1981, part 4 (Family provision)
s 107 61 s 109 Powers of Attorney CHAPTER 6--SUPREME COURT 1 PART 1--GENERAL 2 extend to powers of attorney made otherwise than under this 3 Powers Act 4 107.(1) The court's powers under this Act are not limited to general 5 powers of attorney made under this Act and enduring documents. 6 (2) The court's powers under this Act extend to powers of attorney made 7 otherwise than under this Act, whether made before or after its 8 commencement. 9 jurisdiction and next friend and guardian ad litem process 10 Inherent not affected 11 108.(1) This Act does not affect the court's inherent jurisdiction, 12 including its parens patriae jurisdiction, or the powers the court has other 13 than under this Act.78 14 (2) This Act also does not affect rules of court of the Supreme Court, 15 District Courts or Magistrates Courts about a person who has impaired 16 capacity suing by a `next friend', or defending proceedings by a `guardian 17 ad litem', appointed by the relevant court. 18 ART 2--COURT'S POWERS 19 P and participation 20 Application 109.(1) An application may be made to the court for-- 21 78 This jurisdiction is based on the need to protect those who lack the capacity to protect themselves. It allows the Supreme Court to appoint attorneys for people who, because of mental illness, intellectual disability, illness, accident or old age, are unable to adequately safeguard their own interests.
s 109 62 s 109 Powers of Attorney (a) a declaration, order, direction, recommendation or advice about 1 something in, or related to, this Act; or 2 (b) consent to a special health matter. 3 (2) The application may be by the principal concerned or another 4 interested person unless this Act states otherwise. 5 (3) Each of the following persons may apply to the court for it to do 6 something under this chapter about a power of attorney, enduring power of 7 attorney or advance health directive, or the exercise of an attorney's 8 power-- 9 (a) the principal; 10 (b) a member of the principal's family; 11 (c) an attorney; 12 (d) the adult guardian or public trustee; 13 (e) if the document is an advance health directive or the application 14 involves power for a health matter--the adult guardian or a health 15 provider of the principal; 16 (f) an interested person. 17 (4) A person joined as a party to a proceeding under this Act or a person 18 the court considers an interested person may participate in the proceeding. 19 (5) In this section-- 20 "family", of a principal, consists of the following members-- 21 (a) the principal's spouse; 22 (b) each of the principal's children who is 18 years or more 23 (including a stepchild, an adopted child, and a person for whom 24 the principal was foster-parent or guardian when the person was a 25 child); 26 (c) each of the principal's parents (including a step-parent, adoptive 27 parent, foster-parent and guardian); 28 (d) if there is no person mentioned in paragraph (a), (b) or (c) who is 29 reasonably available--each of the principal's siblings who is 30 18 years or more (including a step-sibling, adopted sibling, and 31 foster-sibling). 32
s 110 63 s 113 Powers of Attorney of capacity 1 Determination 110. The court may make a declaration about a person's capacity. 2 of declaration about capacity to enter contract 3 Effect 111. A declaration about whether a person had capacity to enter a contract 4 is binding in a subsequent proceeding in which the validity of the contract is 5 in issue. 6 about validity 7 Declaration 112.(1) The court may decide the validity of a power of attorney, 8 enduring power of attorney or advance health directive. 9 (2) The court may declare a document mentioned in subsection (1) 10 invalid if the court is satisfied-- 11 (a) the principal did not have the capacity necessary to make it;79 or 12 (b) it does not comply with the other requirements of this Act;80 or 13 (c) it is invalid for another reason, for example, the principal was 14 induced to make it by dishonesty or undue influence. 15 (3) If the court declares the document invalid, the court may, at the same 16 time, appoint 1 or more attorneys81 for the principal. 17 of invalidity 18 Effect 113. If the court declares a document invalid under section 113, the 19 document is void from the start. 20 79 See sections 40 (Principal's capacity to make an enduring power of attorney) and 41 (Principal's capacity to make an advance health directive). 80 See chapter 2, part 2 (Making a power of attorney other than an enduring power of attorney) and chapter 3, part 4 (Making an enduring document), particularly section 43 (Formal requirements). 81 The court is not limited to appointing an "eligible attorney" (defined in section 29).
s 114 64 s 117 Powers of Attorney about commencement of power 1 Declaration 114. The court may make a declaration that-- 2 (a) a power, under a power of attorney, enduring power of attorney 3 or advance health directive, has begun; or 4 (b) the principal has impaired capacity for a matter or all matters. 5 removing attorney or changing or revoking document 6 Order 115. The court may, by order-- 7 (a) remove an attorney and appoint a new attorney82 to replace the 8 removed attorney; or 9 (b) remove a power from an attorney and give the removed power to 10 another attorney or to a new attorney; or 11 (c) change the terms of a power of attorney, enduring power of 12 attorney or advance health directive; or 13 (d) revoke all or part of a document mentioned in paragraph (c). 14 circumstances as basis for change or revocation 15 Changed 116. Without limiting the grounds on which the court may make an 16 order changing the terms of a power of attorney, enduring power of 17 attorney or advance health directive, or revoking all or part of 1 of these 18 documents, the court may make the order if the court considers the 19 principal's circumstances or other circumstances (including, for a health 20 power, advances in medical science) have changed to the extent that 1 or 21 more terms of the document are inappropriate. 22 directions and recommendations etc. 23 Advice, 117.(1) On an application about a matter, the court may give directions or 24 advice or make a recommendation, order or declaration about the matter or 25 another matter related to this Act, including about-- 26 82 The court is not limited to appointing an "eligible attorney" (defined in section 29).
s 118 65 s 119 Powers of Attorney (a) the interpretation of the terms of, or another issue involving, a 1 power of attorney, enduring power of attorney or advance health 2 directive; or 3 (b) the exercise of an attorney's power or another issue involving an 4 attorney's power. 5 (2) Without limiting subsection (1), if the court considers it in the best 6 interests of the principal, the court may, by order and subject to the terms 7 the court considers appropriate, authorise an attorney, either generally or in a 8 specific case, to undertake a transaction that the attorney is not otherwise 9 authorised to undertake or may not otherwise be authorised to undertake. 10 11 Example-- 12 Despite section 83 which limits the investments an attorney for financial matters 13 under an enduring power of attorney83 may make, the court may, by order, authorise 14 the attorney to invest in investments that are not authorised or permitted by the 15 Trusts Act 1973 for the investment of trust funds. to special health care 16 Consent 118.(1) The court may give consent to special health care of an adult. 17 (2) To avoid any doubt, it is declared that the court's power is in addition 18 to, and not in derogation of, the adult guardian's power under the 19 Intellectually Disabled Citizens Act 1985, section 26A.84 20 may proceed without all relevant material 21 Court 119.(1) If the court considers urgent or special circumstances justify it 22 doing so, the court may proceed to decide a matter on the information 23 before it without receiving all relevant material. 24 83 Section 83 does not apply to an enduring power of attorney made under the Property Law Act 1974. 84 The Intellectually Disabled Citizens Act 1985, section 26A(1)-- `If the council authorises the adult guardian to act for an assisted citizen, the adult guardian may give consent for the citizen to medical, dental, surgical or other professional treatment or care ... being carried out on or provided to the citizen for the citizen's benefit by a person professionally qualified to carry it out or provide it.'.
s 120 66 s 121 Powers of Attorney (2) If all the participants in a proceeding agree, the court may also 1 proceed to decide a matter in the proceeding on the information before it 2 when the agreement was reached without receiving all relevant material. 3 (3) Before the participants agree, the court must ensure they are aware of 4 the material on which the matter will be decided. 5 by adult guardian or public trustee 6 Report 120.(1) The court may-- 7 (a) receive in evidence in a proceeding a written report by the adult 8 guardian or public trustee on a matter in the proceeding; and 9 (b) have regard to the matter contained in the report. 10 (2) If the court receives a report in evidence in a proceeding, the principal 11 concerned in the proceeding and each participant in the proceeding must be 12 given a copy of the report unless the court directs otherwise. 13 and audit 14 Records 121.(1) For an attorney for a financial matter under an enduring power of 15 attorney, the court may make an order that-- 16 (a) the attorney files in the court, and serves on the applicant, a 17 summary of receipts and expenditure under the power for a 18 specified period; or 19 (b) the attorney files in the court, and serves on the applicant, more 20 detailed accounts of dealings and transactions under the power for 21 a specified period; or 22 (c) the accounts be audited by an auditor appointed by the court and 23 that a copy of the auditor's report be given to the court and the 24 applicant; or85 25 (d) the attorney present a plan of management for approval. 26 (2) The court may make the order on its own initiative or on the 27 application of the principal or another interested person. 28 85 See section 134(b) which gives the adult guardian similar power.
s 122 67 s 124 Powers of Attorney (3) The court may make an order about payment of the auditor's costs, 1 including security for the costs. 2 may dismiss frivolous etc. applications 3 Court 122.(1) The court may dismiss an application if the court is satisfied the 4 application is-- 5 (a) frivolous or vexatious; or 6 (b) misconceived or lacking in substance. 7 (2) If the court considers it appropriate, the court may also-- 8 (a) order that the applicant pay the costs of another participant in the 9 proceeding; and 10 (b) direct that the applicant must not, without the court's leave, make 11 a subsequent application to the court of a type stated in the 12 direction. 13 (3) The court may discharge or change a direction under subsection (2). 14 reasons for decision 15 Written 123. On application by a person the court considers has a sufficient 16 interest in obtaining reasons for its decision, the court must give written 17 reasons for the decision within 28 days after the application. 18 osts 19 C 124.(1) The costs of a proceeding are within the court's discretion. 20 (2) However, unless the court otherwise orders, costs follow the event. 21
s 125 68 s 126 Powers of Attorney HAPTER 7--ADULT GUARDIAN 1 C ART 1--ESTABLISHMENT, FUNCTIONS AND 2 P POWERS 3 guardian 4 Adult 125. There must be an Adult Guardian.86 5 unctions 6 F 126.(1) The adult guardian's role is to protect the rights and interests of 7 adults who have impaired capacity. 8 (2) The adult guardian has the functions given to the adult guardian by 9 this Act or another Act, including the following functions-- 10 (a) protecting adults who have impaired capacity from neglect, 11 exploitation or abuse; 12 (b) investigating complaints and allegations about actions by an 13 attorney or person acting or purporting to act under-- 14 (i) a general power of attorney made under this Act; or 15 (ii) an enduring document; or 16 (iii) a power of attorney made otherwise than under this Act, 17 whether before or after its commencement; 18 (c) mediating and conciliating between attorneys or between 19 attorneys and others, for example, health providers, if the adult 20 guardian considers this appropriate to resolve a dispute; 21 (d) acting as attorney-- 22 (i) for a personal matter under an enduring power of attorney; 23 or 24 (ii) under an advance health directive; or 25 86 See part 4 (Administrative provisions), particularly section 149 (Appointment).
s 127 69 s 129 Powers of Attorney (iii) for a health matter under chapter 4;87 or 1 (iv) if appointed by the court; 2 (e) seeking assistance (including assistance from a government 3 department, or other institution, welfare organisation or provider 4 of a service or facility) for, making representations for, or acting 5 for, an adult who has impaired capacity for a matter; 6 (f) educating and advising people about, and conducting research 7 into, the operation of this Act. 8 (3) In performing a function or exercising a power, the adult guardian 9 must comply with the general principles and the health care principle.88 10 11 Powers 127.(1) The adult guardian has the powers given under this Act or 12 another Act. 13 (2) Also, the adult guardian may do all things necessary or convenient to 14 be done for performing the adult guardian's functions. 15 under Ministerial control 16 Not 128. In performing the adult guardian's functions and exercising the 17 adult guardian's powers, the adult guardian is not under the control or 18 direction of the Minister. 19 20 Delegation 129.(1) The adult guardian may delegate89 the adult guardian's powers to 21 an appropriately qualified member of the adult guardian's staff. 22 (2) Also, if the adult guardian has power for a personal matter for an 23 adult, the adult guardian may delegate the power to make day-to-day 24 decisions about the matter to 1 of the following-- 25 87 Chapter 4 (Statutory health attorneys) 88 See schedule 1. 89 The Acts Interpretation Act 1954, section 27A applies to the delegation.
s 130 70 s 130 Powers of Attorney (a) an appropriately qualified carer of the adult; 1 (b) a health provider of the adult;90 2 (c) an attorney under-- 3 (i) a general power of attorney made under this Act; or 4 (ii) an enduring document; or 5 (iii) a power of attorney made otherwise than under this Act, 6 whether before or after its commencement; 7 (d) 1 of the people who could be eligible to be the adult's statutory 8 health attorney. 9 (3) In this section-- 10 "appropriately qualified", for a person to whom a power under an Act 11 may be delegated, includes having the qualifications, experience or 12 standing appropriate to exercise the power. 13 14 Example of `standing' for a person working in a hospital or care facility-- 15 A person's level of authority in the hospital or care facility. "day-to-day decision" means a minor, uncontroversial decision about 16 day-to-day issues that involves no more than a low risk to the adult. 17 18 Example of day-to-day decision-- 19 A decision about podiatry, physiotherapy, non-surgical treatment of pressure sores 20 and health care for colds and influenza. and employment of professionals 21 Consultation 130.(1) The adult guardian may consult with, employ, and remunerate, 22 the medical, legal, accounting or other professionals the adult guardian 23 considers necessary. 24 (2) The adult guardian is entitled to reimbursement from an adult for 25 remuneration paid concerning the adult. 26 90 This is despite an adult's paid carer or health provider not being eligible to be appointed as the adult's attorney--see section 29 (Meaning of "eligible attorney").
s 131 71 s 132 Powers of Attorney and supervision 1 Advice 131. The adult guardian may-- 2 (a) give advice to an attorney; and 3 (b) by written notice, make an attorney under an enduring power of 4 attorney or advance health directive subject to the adult guardian's 5 supervision for a reasonable period if the adult guardian believes, 6 on reasonable grounds, that it is necessary in the adult's interests 7 including, for example, because the attorney has contravened this 8 Act or the attorney's duties but has not done this wilfully; and 9 (c) require an attorney who may exercise power for a financial matter 10 under an enduring power of attorney to present a plan of 11 management for approval. 12 protection 13 Whistleblowers' 132.(1) A person is not liable, civilly, criminally or under an 14 administrative process, for disclosing to the adult guardian information 15 about a person's conduct that breaches this Act. 16 (2) Without limiting subsection (1)-- 17 (a) in a proceeding for defamation the discloser has a defence of 18 absolute privilege for publishing the disclosed information; and 19 (b) if the discloser would otherwise be required to maintain 20 confidentiality about the disclosed information under an Act, oath, 21 rule of law or practice--the discloser-- 22 (i) does not contravene the Act, oath, rule of law or practice for 23 disclosing the information; and 24 (ii) is not liable to disciplinary action for disclosing the 25 information. 26 (3) A person's liability for the person's own conduct is not affected only 27 because the person discloses it to the adult guardian. 28
s 133 72 s 135 Powers of Attorney ART 2--INVESTIGATIVE POWERS 1 P complaints 2 Investigate 133. The adult guardian may investigate a complaint or allegation that an 3 adult who has impaired capacity-- 4 (a) is being neglected, exploited or abused; or 5 (b) has inappropriate or inadequate decision-making arrangements. 6 and audit 7 Records 134. If an attorney under an enduring power of attorney91 has power for 8 a financial matter, the adult guardian may, by written notice to the attorney, 9 require that-- 10 (a) the attorney files with the adult guardian a summary of receipts 11 and expenditure, or more detailed accounts of dealings and 12 transactions, under the power for a specified period; or 13 (b) the accounts be audited by an auditor appointed by the adult 14 guardian and that a copy of the auditor's report be given to the 15 adult guardian.92 16 to information 17 Right 135.(1) The adult guardian has a right to all the information necessary to 18 investigate a complaint or allegation or to carry out an audit.93 19 (2) On request, a person who has custody or control of the information 20 must-- 21 (a) disclose the information to the adult guardian; and 22 91 An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be an enduring power of attorney made under this Act--section 162. 92 See section 121 which gives the court similar power. 93 In addition, section 80 gives the adult guardian a right to information as an attorney.
s 136 73 s 136 Powers of Attorney (b) if the person is an attorney and the information is contained in a 1 document--give the document to the adult guardian; and 2 (c) if the person is not an attorney and the information is contained in 3 a document--allow the adult guardian to inspect the document 4 and take a copy of it. 5 Maximum penalty--100 penalty units. 6 (3) This section overrides-- 7 (a) any restriction, in an Act or the common law, about the disclosure 8 or confidentiality of information; and 9 (b) any claim of confidentiality or privilege, including a claim based 10 on legal professional privilege. 11 to summon 12 Power 136.(1) For the performance of the adult guardian's functions, the adult 13 guardian may, by written notice given to a person, require the person-- 14 (a) to give information by statutory declaration; or 15 (b) to attend before the adult guardian at a stated time and place to 16 give information and answer questions, or produce stated 17 documents or things. 18 (2) The person must comply with the notice. 19 Maximum penalty--100 penalty units. 20 (3) The adult guardian may-- 21 (a) require the person either to take an oath or make an affirmation; 22 and 23 (b) administer an oath or affirmation to the person, or, if telephone 24 conferencing, video conferencing or another form of 25 telecommunication is to be used, make arrangements that appear 26 to the adult guardian to be appropriate in the circumstances for 27 administering an oath or affirmation to the person; and 28 (c) allow the person to give information by tendering a written 29 statement, verified, if the adult guardian directs, by oath or 30 affirmation. 31
s 137 74 s 138 Powers of Attorney (4) The person must comply with a requirement under subsection (3)(a). 1 Maximum penalty--100 penalty units. 2 (5) The adult guardian must pay or tender to the person an amount 3 equivalent to the fees and expenses allowable to witnesses under the 4 Magistrates Courts Rules 1960. 5 of investigations and audits 6 Cost 137.(1) If the adult guardian undertakes an investigation concerning a 7 financial matter or audit at the request of a person, the adult guardian may, 8 by written notice, require the person to pay the amount the adult guardian 9 considers appropriate as security for the cost of the investigation or audit. 10 (2) The cost of an investigation or audit is payable by the principal unless 11 the adult guardian, by written notice, requires that the cost be paid by the 12 person who requested the investigation or audit or by the attorneys or any of 13 them personally, or by any 2 or more of these people, and in the 14 proportions the adult guardian directs. 15 (3) A person required to pay under subsection (2) may apply to the court 16 and the court may make the order it considers appropriate. 17 or misleading statements 18 False 138.(1) A person must not-- 19 (a) state anything to the adult guardian the person knows is false or 20 misleading in a material particular; or 21 (b) omit from a statement made to the adult guardian anything 22 without which the statement is, to the person's knowledge, 23 misleading in a material particular. 24 Maximum penalty--100 penalty units. 25 (2) It is enough for a complaint against a person for an offence against 26 subsection (1) to state the statement made was `false or misleading' to the 27 person's knowledge. 28
s 139 75 s 141 Powers of Attorney misleading or incomplete documents 1 False, 139.(1) A person must not give the adult guardian a document containing 2 information the person knows is false, misleading or incomplete in a 3 material particular. 4 Maximum penalty--100 penalty units. 5 (2) Subsection (1) does not apply to a person if the person, when giving 6 the document-- 7 (a) tells the adult guardian, to the best of the person's ability, how it 8 is false, misleading or incomplete; and 9 (b) if the person has, or can reasonably obtain, the correct 10 information--gives the correct information. 11 (3) It is enough for a complaint against a person for an offence against 12 subsection (1) to state the document contained information that was `false, 13 misleading or incomplete' to the person's knowledge. 14 investigation or audit 15 Obstructing 140.(1) A person must not obstruct or improperly influence the conduct 16 of an investigation or audit. 17 Maximum penalty--100 penalty units. 18 (2) In this section-- 19 "influence" includes attempt to influence. 20 "obstruct" includes hinder, resist and attempt to obstruct. 21 after investigation or audit 22 Report 141.(1) After the adult guardian has carried out an investigation or audit, 23 the adult guardian must make a written report and give a copy of the report 24 to any person at whose request the investigation or audit was carried out and 25 to every attorney. 26 (2) It is a lawful excuse for the publication of any defamatory statement 27 made in the report that the publication is made in good faith and is, or 28 purports to be, made for the purposes of this Act. 29
s 142 76 s 142 Powers of Attorney (3) The adult guardian must allow an interested person to inspect a copy 1 of the report at all reasonable times and, at the person's own expense, to be 2 given a copy of the report. 3 PART 3--PROTECTIVE POWERS 4 for protection of property 5 Proceedings 142.(1) If the adult guardian considers that-- 6 (a) property of an adult who has impaired capacity is wrongfully 7 held, detained, converted or injured; or 8 (b) money is payable to the adult; 9 the adult guardian, either in the name of the adult guardian or the adult, may 10 claim and recover possession of the property, damages for conversion of or 11 injury to the property, or payment of the money, by application to the court 12 by originating summons. 13 (2) However-- 14 (a) the adult guardian may proceed in another way; and 15 (b) the court may direct that the adult guardian proceed in another 16 way, for example, by bringing an action or other proceeding. 17 (3) The court may make-- 18 (a) an order requiring the person proceeded against to give up 19 possession of the property or to pay damages as assessed by the 20 court for the conversion of or injury to the property, or payment 21 of the money; and 22 (b) an order about costs it considers appropriate. 23 (4) An order under this section has the same effect and may be enforced 24 in the same way as a judgment of the court. 25
s 143 77 s 143 Powers of Attorney uspension 1 S 143.(1) This section applies to an attorney under an enduring 2 document.94 3 (2) The adult guardian may, by written notice to an attorney, suspend the 4 operation of all or some of the attorney's power if the adult guardian 5 suspects, on reasonable grounds, that the attorney is not suitable or 6 competent, for example, because-- 7 (a) a relevant interest of the adult has not been, or is not being, 8 adequately protected; or 9 (b) the attorney has neglected the attorney's duties, or abused the 10 attorney's powers (whether generally or in relation to a specific 11 power); or 12 (c) the attorney has otherwise contravened this Act. 13 (3) The suspension may not be for more than 3 months.95 14 (4) During the suspension-- 15 (a) the public trustee must exercise suspended power for a financial 16 matter; and 17 (b) the adult guardian must exercise suspended power for a personal 18 matter. 19 (5) The adult guardian may lift the suspension with or without 20 conditions. 21 (6) The attorney may apply to the court and the court may make the order 22 it considers appropriate. 23 94 An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 162 is taken to be an enduring power of attorney made under this Act--section 162. 95 During this period, the adult guardian may carry out an investigation (section 133) or audit (section 134) or apply to the court to remove the attorney's power or revoke the enduring power of attorney (section 115) or to give directions or advice or make a recommendation, order or declaration about a matter (section 117).
s 144 78 s 146 Powers of Attorney for entry and removal warrant 1 Application 144.(1) The adult guardian may apply to a magistrate for a warrant to 2 enter a place and to remove an adult. 3 (2) The application must be sworn and state the grounds on which the 4 warrant is sought. 5 (3) The magistrate may refuse to consider the application until the adult 6 guardian gives the magistrate all the information the magistrate requires 7 about the application in the way the magistrate requires. 8 9 Example-- 10 The magistrate may require additional information supporting the application to 11 be given by statutory declaration. of entry and removal warrant 12 Issue 145.(1) The magistrate may issue a warrant only if the magistrate is 13 satisfied there are reasonable grounds for suspecting there is an immediate 14 danger, because of neglect, exploitation or abuse, to an adult who has 15 impaired capacity for a matter. 16 (2) The warrant must state-- 17 (a) that the adult guardian may, with necessary and reasonable help 18 and force, enter the place and remove the adult; and 19 (b) the hours of the day or night when the place may be entered; and 20 (c) the date, within 14 days after the warrant's issue, the warrant 21 ends. 22 of occupier if entry and removal warrant 23 Role 146.(1) The adult guardian may require the occupier of the place or 24 another person at the place to help in the exercise of the adult guardian's 25 powers under the warrant. 26 (2) When making the requirement, the adult guardian making it must 27 warn that it is an offence to fail to comply with the requirement unless a 28 person has a reasonable excuse. 29 (3) A person required to give reasonable help must comply with the 30
s 147 79 s 149 Powers of Attorney requirement, unless the person has a reasonable excuse. 1 Maximum penalty--100 penalty units. 2 of police officer if entry and removal warrant 3 Role 147.(1) The adult guardian may ask a police officer to help in the exercise 4 of the adult guardian's powers under the warrant. 5 (2) The police officer must give the adult guardian the reasonable help the 6 adult guardian requires, if it is practicable to give the help. 7 requirement after removal of adult 8 Reporting 148. As soon as practicable after the adult has been removed under the 9 warrant, the adult guardian must apply to the court for the orders the adult 10 guardian considers appropriate about the following-- 11 (a) the adult's personal welfare; 12 (b) a power of attorney, enduring power of attorney or advance health 13 directive of the adult; 14 (c) an attorney of the adult. 15 PART 4--ADMINISTRATIVE PROVISIONS 16 17 Appointment 149.(1) The adult guardian is to be appointed on a full-time basis by the 18 Governor in Council. 19 (2) A person may not hold office as adult guardian at the same time as 20 the person holds another office having functions concerning the protection 21 of the rights and interests of, or the provision of services or facilities to, 22 adults who have impaired capacity. 23
s 150 80 s 153 Powers of Attorney of appointment 1 Duration 150.(1) The adult guardian holds office for a term of not longer than 2 5 years.96 3 (2) The office of adult guardian becomes vacant if the adult guardian 4 resigns by signed notice of resignation given to the Governor in Council. 5 (3) The Governor in Council may remove the adult guardian from office 6 for-- 7 (a) physical or mental incapacity to perform official duties 8 satisfactorily; or 9 (b) neglect of duty; or 10 (c) dishonourable conduct; or 11 (d) being found guilty of an offence that, in the Minister's opinion, 12 makes the person unsuitable to perform official duties. 13 of appointment 14 Terms 151.(1) The adult guardian is to be paid the remuneration and allowances 15 decided by the Governor in Council. 16 (2) To the extent this Act does not state the terms on which the adult 17 guardian holds office, the adult guardian holds office on the terms decided 18 by the Governor in Council. 19 of absence 20 Leave 152. The Minister may give the adult guardian leave of absence on the 21 terms the Minister considers appropriate. 22 adult guardian 23 Acting 153. The Governor in Council may appoint a person to act as the adult 24 guardian-- 25 96 However, the adult guardian may be reappointed--see Acts Interpretation Act 1954, section 25(1)(c).
s 154 81 s 156 Powers of Attorney (a) for any period the office is vacant; or 1 (b) for any period, or all periods, when the adult guardian is absent 2 from duty or is, for another reason, unable to perform the duties 3 of the office. 4 5 Staff 154.(1) Staff necessary to enable the adult guardian to perform the adult 6 guardian's functions are to be appointed under the Public Service Act 1996. 7 (2) The adult guardian has all the functions and powers of the chief 8 executive of a department, so far as the functions and powers relate to the 9 organisational unit made up of the adult guardian's staff, as if-- 10 (a) the unit were a department within the meaning of the Public 11 Service Act 1996; and 12 (b) the adult guardian were the chief executive of the department. 13 from liability 14 Protection 155.(1) In this section-- 15 "official" means a person who is or has been-- 16 (a) the adult guardian; or 17 (b) a member of the adult guardian's staff; or 18 (c) a professional consulted or employed by the adult guardian; or 19 (d) an expert adviser to the adult guardian. 20 (2) The official is not civilly liable for an act done, or omission made, 21 honestly and without negligence under this Act. 22 (3) If subsection (2) prevents a civil liability attaching to an official, the 23 liability attaches instead to the State. 24 of confidentiality 25 Preservation 156.(1) If a person gains confidential information because of the 26 person's involvement in this Act's administration, the person must not 27 make a record of the information or intentionally or recklessly disclose the 28
s 157 82 s 157 Powers of Attorney information to anyone other than under subsection (3). 1 (2) A person gains information through involvement in the 2 administration of this Act if the person gains the information because of 3 being, or an opportunity given by being-- 4 (a) the adult guardian; or 5 (b) a member of the adult guardian's staff; or 6 (c) a professional consulted or employed by the adult guardian; or 7 (d) an expert adviser to the adult guardian. 8 (3) A person may make a record of confidential information, or disclose 9 it to someone else-- 10 (a) for this Act; or 11 (b) to discharge a function under another law; or 12 (c) for a proceeding in a court or relevant tribunal; or 13 (d) if authorised under a regulation or another law; or 14 (e) if authorised by the person to whom the information relates. 15 (4) In this section-- 16 "confidential information" includes information about a person's affairs 17 but does not include-- 18 (a) information already publicly disclosed unless further disclosure 19 of the information is prohibited by law; or 20 (b) statistical or other information that could not reasonably be 21 expected to result in the identification of the person to whom the 22 information relates. 23 of information about investigations 24 Disclosure 157.(1) Section 15697 does not prevent the adult guardian from 25 disclosing information to a person or to members of the public about an 26 issue the subject of an investigation by the adult guardian if the adult 27 97 Section 156 prohibits the improper recording or disclosure of confidential information.
s 158 83 s 160 Powers of Attorney guardian is satisfied the disclosure is necessary and reasonable in the public 1 interest. 2 (2) However, the adult guardian must not make the disclosure if it is 3 likely to prejudice the investigation. 4 (3) In a disclosure under subsection (1), the adult guardian-- 5 (a) may express an opinion expressly or impliedly critical of an entity 6 only if the adult guardian has given the entity an opportunity to 7 answer the criticism; and 8 (b) may identify the complainant directly or indirectly, only if it is 9 necessary and reasonable. 10 11 Budget 158. The adult guardian must submit for approval of the Minister a 12 budget for each financial year. 13 report 14 Annual 159.(1) The adult guardian must, as soon as practicable after each 15 financial year-- 16 (a) prepare a report on the exercise of the adult guardian's functions 17 during the year; and 18 (b) give a copy of the report to the Minister. 19 (2) The Minister must table a copy of the report in the Legislative 20 Assembly within 14 sitting days after receiving the report. 21 CHAPTER 8--OTHER 22 executive may approve forms 23 Chief 160. The chief executive may approve forms for use under this Act. 24
s 161 84 s 164 Powers of Attorney power 1 Regulation-making 161. The Governor in Council may make regulations under this Act. 2 HAPTER 9--TRANSITIONAL AND 3 C CONSEQUENTIAL 4 ART 1--TRANSITIONAL 5 P of attorney under Property Law Act 1974 6 Powers 162. Except where this Act expressly provides otherwise, on the 7 commencement of this section, a general power of attorney, or enduring 8 power of attorney, made under the Property Law Act 1974 and of force and 9 effect immediately before the commencement of this section is taken to be a 10 general power of attorney, or enduring power of attorney, made under this 11 Act. 12 ART 2--AMENDMENT OF FREEDOM OF 13 P INFORMATION ACT 1992 14 amended in pt 2 15 Act 163. This part amends the Freedom of Information Act 1992. 16 of s 11 (Act not to apply to certain bodies etc.) 17 Amendment 164. Section 11(1)-- 18 insert-- 19 `(o) the adult guardian in relation to an investigation or audit; or'. 20
s 165 85 s 167 Powers of Attorney ART 3--AMENDMENT OF INTELLECTUALLY 1 P DISABLED CITIZENS ACT 1985 2 amended in pt 3 3 Act 165. This part amends the Intellectually Disabled Citizens Act 1985. 4 of section 4 (Definitions) 5 Amendment 166. Section 4-- 6 insert-- 7 ` "adult guardian" means the adult guardian established under the Powers 8 of Attorney Act 1997.'. 9 of section 13A (Allocation of duties to panels) 10 Amendment 167.(1) Section 13A(1), `determine that the application or review be'-- 11 omit, insert-- 12 `decide that the application or review is to be'. 13 (2) Section 13A(2A), (4) and (5)-- 14 renumber as section 13A(5), (6) and (7). 15 (3) Section 13A(2) and (3)-- 16 omit, insert-- 17 `(2) If the chairperson decides that the application or review is to be 18 allocated to a panel, the chairperson may constitute as a panel-- 19 (a) 3 people who are members or panel members or a combination 20 of both, 1 of whom must be appointed by the chairperson as 21 convenor of the panel; or 22 (b) for a review, or an application for a review, that the chairperson 23 considers would be appropriately dealt with by a single member 24 panel--1 person who is a member or panel member and who 25 must be appointed by the chairperson as convenor of the panel. 26 `(3) If an application or review is allocated to a panel, the panel must-- 27
s 168 86 s 170 Powers of Attorney (a) proceed on the papers, that is, consider the written material and 1 submissions placed before it, by the chairperson or by persons 2 entitled to be present at the proceedings,98 without an oral hearing 3 unless-- 4 (i) the panel considers it inappropriate to do so; or 5 (ii) a person entitled to be present requires an oral hearing; and 6 (b) decide the application or review unless the chairperson directs 7 otherwise, for example, by asking the panel to make 8 recommendations only. 9 `(4) For this Act, a decision of a panel about an application or review is 10 taken to be a decision of the council.'. 11 of s 18 (Quorum) 12 Amendment 168.(1) Section 18(1), from `(other than' to `subsection (2))'-- 13 omit. 14 (2) Section 18(2)-- 15 omit. 16 of s 19 (Meetings) 17 Amendment 169.(1) Section 19(3), `, at a meeting' to `section 18(2)'-- 18 omit. 19 (2) Section 19(5)-- 20 omit. 21 of pt 2A (Legal friend) 22 Replacement 170. Part 2A-- 23 omit, insert-- 24 98 See section 29 (Notice of proceedings etc.) and section 30(3).
s 170 87 s 170 Powers of Attorney ART 2A--LEGAL FRIEND AND ADULT 1 `P GUARDIAN 2 friend 3 `Legal `26.(1) Subject to the direction of the Minister, the legal friend may do 4 any of the following-- 5 (a) obtain for or provide to an assisted citizen or the citizen's relative 6 approved under this Act or, if a relative has not been approved, 7 the citizen's nearest relative, information about the citizen's legal 8 rights and legal procedures and specialised services that are 9 available to help the citizen; 10 (b) if the legal friend is satisfied that an assisted citizen cannot 11 effectively instruct a lawyer--instruct a lawyer to act for the 12 citizen; 13 (c) liaise with government departments, other organisations or 14 persons for an assisted citizen; 15 (d) perform the other functions99 that are prescribed. 16 `(2) In acting for an assisted citizen, the legal friend must carry out the 17 citizen's wishes as expressed to the legal friend, or, if the citizen is unable to 18 express his or her wishes, the legal friend must act in the way the legal 19 friend considers the citizen would wish to act if the citizen were able to 20 express his or her wishes. 21 guardian 22 `Adult `26A.(1) If the council authorises the adult guardian to act for an assisted 23 citizen, the adult guardian may give consent for the citizen to medical, 24 dental, surgical or other professional treatment or care (whether a single 25 item of treatment or care or a course of treatment or care over a period) 26 being carried out on or provided to the citizen for the citizen's benefit by a 27 person professionally qualified to carry it out or provide it. 28 `(2) However, before deciding whether or not to consent, the adult 29 99 "Function" includes duty--Acts Interpretation Act 1954, section 36.
s 170 88 s 170 Powers of Attorney guardian must-- 1 (a) take all reasonable steps to consult with relatives of the assisted 2 citizen who are providing ongoing care for the citizen and give 3 proper consideration to their view; and 4 (b) take all reasonable steps to become as fully informed as possible 5 on matters requiring consent and the options available; and 6 (c) for paragraph (b), consult with-- 7 (i) persons who are providing ongoing care for the assisted 8 citizen; and 9 (ii) appropriate professional persons; and 10 (iii) relatives of the assisted citizen or other persons who appear 11 to the adult guardian to have a proper interest in the 12 wellbeing of the assisted citizen; and 13 (d) ensure the assisted citizen is informed as fully as possible on 14 matters requiring consent and the options available, consistent 15 with the citizen's ability to understand the information. 16 `(3) If consenting, the adult guardian must ensure that, as far as possible, 17 the consent is for the least restrictive option available, after taking into 18 consideration the health, wellbeing and expressed wishes of the assisted 19 citizen. 20 `(4) However, the adult guardian must not consent if to consent would be 21 inconsistent with a direction given by the assisted citizen in an advance 22 health directive under the Powers of Attorney Act 1997.100 23 `(5) Also, if a committee of the person of an assisted citizen is appointed 24 under the Mental Health Act 1974, the adult guardian must not consent 25 without the committee's agreement. 26 `(6) Consent by the adult guardian may be given effect to, and, if given 27 effect to, has the same force and effect as if the citizen-- 28 (a) had given the consent rather than the adult guardian; and 29 (b) were of full legal capacity. 30 100 Under section 31A(5), an assisted citizen's attorney (including a statutory health attorney) is subject to the adult guardian's control.
s 170 89 s 170 Powers of Attorney before assisted citizen status 1 `Acting `26B.(1) This section applies if the legal friend or adult guardian (the 2 "officer") considers that-- 3 (a) a citizen is an intellectually disabled citizen; and 4 (b) obtaining the council's approval under section 31A would cause 5 unreasonable delay. 6 `(2) The officer may, with the chairperson's approval, act under this part 7 for the citizen as if the citizen were an assisted citizen and the officer had 8 been authorised under section 31A(4) to act for the citizen. 9 `(3) However, when acting under subsection (2), the adult guardian may 10 consent to treatment or care being carried out only if it is necessary to 11 alleviate or prevent the citizen being subject to significant illness or suffering 12 or to preserve the citizen's life. 13 `(4) As soon as possible after acting under subsection (2), the officer 14 must make or cause to be made an application under section 27. 15 when supplying information 16 `Protection `26C. Supplying information to the legal friend or adult guardian for a 17 purpose under this Act is not unprofessional conduct or a breach of 18 professional ethics on the part of the person supplying the information. 19 to council 20 `Advice `26D. If asked, the legal friend or adult guardian must obtain advice for, 21 or give advice to, the council. 22 23 `Independence `26E. The legal friend and adult guardian are not accountable in the 24 discharge of their duties under this Act to the council or the chief executive. 25 of Attorney Act principles 26 `Powers `26F. In performing a function or exercising a power, the legal friend 27
s 171 90 s 171 Powers of Attorney and adult guardian must comply with the principles in the Powers of 1 Attorney Act 1997, schedule 1.'. 2 of s 27 (Applications for approvals and reviews) 3 Amendment 171.(1) Section 27(2), after `appears to'-- 4 insert-- 5 `any of the following persons'. 6 (2) Section 27(2)(d) and (e)-- 7 renumber as section 27(2)(e) and (f). 8 (3) Section 27(2)-- 9 insert-- 10 `(d) the adult guardian;'. 11 (4) Section 27(2)(e), as renumbered, `any other'-- 12 omit, insert-- 13 `an'. 14 (5) Section 27(2), `the relative' to `an application'-- 15 omit, insert-- 16 `the person may apply'. 17 (6) Section 27(4)(c)-- 18 renumber as section 27(4)(d). 19 (7) Section 27(4)-- 20 insert-- 21 `(c) the adult guardian; or'. 22 (8) Section 27(4)(d), as renumbered, `any other'-- 23 omit, insert-- 24 `an'. 25 (9) Section 27(5), `subsection (2)(e)'-- 26
s 172 91 s 174 Powers of Attorney omit, insert-- 1 `subsection (2)(f)'. 2 of s 28 (Review) 3 Amendment 172. Section 28, from `thereafter at least once in every 5 years'-- 4 omit, insert-- 5 `, after that, as the council considers appropriate.'. 6 of s 29 (Notice of proceedings etc.) 7 Amendment 173.(1) Section 29(2)(a)(iv), (b)(iv) and (c)(iii), `exhibited a 8 continuing'-- 9 omit, insert-- 10 `a proper'. 11 (2) Section 29(4), `subsection (3)(b)'-- 12 omit, insert-- 13 `subsection (3B)'. 14 (3) Section 29(5)-- 15 omit. 16 of s 30 (Proceedings on applications and reviews) 17 Replacement 174. Section 30-- 18 omit, insert-- 19 on applications and reviews 20 `Proceedings `30.(1) In proceedings under section 28 or 29 concerning a citizen, 21 procedure is according to the directions of the chairperson if it is not 22 provided for by this Act. 23 `(2) The chairperson may give procedural directions of general or limited 24 application. 25 `(3) In proceedings under section 28 or 29 concerning a citizen, the 26
s 175 92 s 175 Powers of Attorney council or panel may-- 1 (a) receive in evidence in a proceeding a written report by a person on 2 the citizen's circumstances; and 3 (b) have regard to the matter contained in the report. 4 `(4) The chairperson or, if the proceedings are before a panel, the 5 convenor may-- 6 (a) authorise a person to interview the citizen and give the council or 7 panel a written report on the citizen's circumstances; and 8 (b) authorise the person to be present and to be heard at the 9 proceedings. 10 `(5) If the citizen does not attend the proceedings, the council or panel 11 must receive a written report on the citizen's circumstances before deciding 12 the application or review. 13 14 Example-- 15 This may happen if the matter is decided on the papers (section 13A(3)(b)) or if 16 the citizen is unable to attend because of the severity of the citizen's disability. `(6) The council or panel is not bound by any rules or practice as to 17 evidence and may inform itself about a matter in the way it considers 18 appropriate.'. 19 of s 31A (Consideration of applications etc.) 20 Amendment 175.(1) Section 31A(4)(b)-- 21 omit, insert-- 22 `(b) may, if it is of the opinion that the citizen is not competent in law 23 as provided in subsection (3)(b), authorise the legal friend or adult 24 guardian to act under part 2A for the citizen to the least extent 25 required;'. 26 (2) Section 31A(6)-- 27 renumber as section 31A(7). 28 (3) Section 31A(5)-- 29 omit, insert-- 30
s 176 93 s 177 Powers of Attorney `(5) If the council authorises the adult guardian to act under part 2A for 1 the citizen, then, in relation to a matter for which the adult guardian may 2 give consent, the citizen's attorney under the Powers of Attorney Act 1997 3 (including a statutory health attorney) may exercise power only to the extent 4 authorised by the adult guardian. 5 `(6) Subsections (1) to (5) apply to a panel deciding an application or 6 review as if it were the council.101'. 7 of s 44 (Access to certain intellectually disabled citizens) 8 Amendment 176.(1) Section 44(1)(b)-- 9 omit, insert-- 10 `(b) the adult guardian; or'. 11 (2) Section 44(2)-- 12 omit, insert-- 13 `(2) If the occupier or person in charge refuses to allow the legal friend or 14 adult guardian (the "officer") to enter the premises, the officer may require 15 the occupier or person in charge to show cause to the officer why entry 16 should not be allowed.'. 17 (3) Section 44(6)(b)(i), `a person referred to in subsection (1)(b)'-- 18 omit, insert-- 19 `adult guardian'. 20 (4) Section 44(7), `or, as the case' to `(6)(b)(ii)'-- 21 omit, insert-- 22 `, adult guardian or a person referred to in subsection (6)(b)(ii)'. 23 of s 48 (Protection from liability) 24 Amendment 177. Section 48(1)-- 25 101 Under section 26A(4), the adult guardian must not consent if to consent would be inconsistent with a direction given by the citizen in an advance health directive.
s 178 94 s 180 Powers of Attorney insert-- 1 `(e) the adult guardian.'. 2 PART 4--AMENDMENT OF LAND ACT 1994 3 amended in pt 4 4 Act 178. This part amends the Land Act 1994. 5 of s 385 (Acts by attorneys) 6 Amendment 179.(1) Section 385, heading-- 7 omit, insert-- 8 `Acts in relation to substitute decision makers'. 9 (2) Section 385-- 10 insert-- 11 `(2) If-- 12 (a) an act is required or permitted to be done in relation to a person 13 under this Act; and 14 (b) the person has a power of attorney that gives an attorney power to 15 deal with land; 16 the act may be done in relation to the attorney.'. 17 ART 5--AMENDMENT OF PROPERTY LAW 18 P ACT 1974 19 amended in pt 5 20 Act 180. This part amends the Property Law Act 1974. 21
s 181 95 s 183 Powers of Attorney of pt 9 (Powers of attorney) 1 Omission 181. Part 9-- 2 omit.102 3 PART 6--AMENDMENT OF PUBLIC TRUSTEE ACT 4 1978 5 amended in pt 6 6 Act 182. This part amends the Public Trustee Act 1978. 7 of new s 63A 8 Insertion 183. In part 5, after section 63-- 9 insert-- 10 guardian resources 11 `Adult `63A.(1) The public trustee must give the adult guardian,103 in 12 accordance with the adult guardian's budget approved by the Minister for 13 the financial year, the financial and other resources (including professional 14 and administrative services and support) necessary or desirable for the 15 performance of the adult guardian's functions. 16 `(2) The resources must also include any resources the Minister may 17 specify in writing to the public trustee.'. 18 19 102 See section 162 (Powers of attorney under Property Law Act 1974) for a transitional provision. 103 The adult guardian is constituted under the Powers of Attorney Act 1997.
96 Powers of Attorney CHEDULE 1 1 ¡S PRINCIPLES 2 section 75 3 ART 1--GENERAL PRINCIPLES 4 P of capacity 5 Presumption 1. An adult is presumed to have capacity for a matter. 6 human rights 7 Same 2.(1) The right of all adults to the same basic human rights regardless of 8 a particular adult's capacity must be recognised and taken into account. 9 (2) The importance of empowering an adult to exercise the adult's basic 10 human rights must also be recognised and taken into account. 11 value 12 Individual 3. An adult's right to respect for his or her human worth and dignity as 13 an individual must be recognised and taken into account. 14 role as member of society 15 Valued 4.(1) An adult's right to be a valued member of society must be 16 recognised and taken into account. 17 (2) Accordingly, the importance of encouraging and supporting an adult 18 to perform social roles valued in society must be taken into account. 19 in community life 20 Participation 5. The importance of encouraging and supporting an adult to live a life in 21
97 Powers of Attorney SCHEDULE 1 (continued) the general community, and to take part in activities enjoyed by the general 1 community, must be taken into account. 2 of self-reliance 3 Encouragement 6. The importance of encouraging and supporting an adult to achieve the 4 adult's maximum physical, social, emotional and intellectual potential, and 5 to become as self-reliant as practicable, must be taken into account. 6 participation, minimal limitations and substituted 7 Maximum judgment 8 7.(1) An adult's right to participate, to the greatest extent practicable, in 9 decisions affecting the adult's life (including the development of policies, 10 programs and services for people who have impaired capacity) must be 11 recognised and taken into account. 12 (2) Also, the importance of preserving, to the greatest extent practicable, 13 an adult's right to make his or her own decisions must be taken into 14 account. 15 (3) So, for example-- 16 (a) the adult must be given any necessary support, and access to 17 information, to enable the adult to participate in decisions 18 affecting the adult's life; and 19 (b) to the greatest extent practicable, for exercising power for a matter 20 for the adult, the adult's views and wishes are to be sought and 21 taken into account; and 22 (c) a person or other entity in performing a function or exercising a 23 power under this Act must do so in the way least restrictive of the 24 adult's rights. 25 (4) Also, the principle of substituted judgment must be used so that if, 26 from the adult's previous actions, it is reasonably practicable to work out 27 what the adult's views and wishes would be, a person or other entity in 28 performing a function or exercising a power under this Act, or an enduring 29 document, must take into account what the person or other entity considers 30
98 Powers of Attorney SCHEDULE 1 (continued) would be the adult's views and wishes. 1 (5) However, a person or other entity in performing a function or 2 exercising a power under this Act, or an enduring document, must do so in 3 a way consistent with the adult's proper care and protection. 4 (6) Views and wishes may be expressed orally, in writing or in another 5 way, including, for example, by conduct. 6 of existing supportive relationships 7 Maintenance 8. The importance of maintaining an adult's existing supportive 8 relationships must be taken into account. 9 of environment and values 10 Maintenance 9.(1) The importance of maintaining an adult's cultural and linguistic 11 environment, and set of values (including any religious beliefs), must be 12 taken into account. 13 (2) For an adult who is a member of an Aboriginal community or a 14 Torres Strait Islander, this means the importance of maintaining the adult's 15 Aboriginal or Torres Strait Islander cultural and linguistic environment, and 16 set of values (including Aboriginal tradition 104 or Island custom105 ), must 17 be taken into account. 18 104 "Aboriginal tradition" means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships--see Acts Interpretation Act 1954, section 36. 105 "Island custom", known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships--see Acts Interpretation Act 1954, section 36.
99 Powers of Attorney SCHEDULE 1 (continued) to circumstances 1 Appropriate 10. Power for a matter should be exercised by an attorney for an adult in 2 a way that is appropriate to the adult's characteristics and needs. 3 4 Confidentiality 11. An adult's right to confidentiality of information about the adult must 5 be recognised and taken into account. 6 PART 2--HEALTH CARE PRINCIPLE 7 care principle 8 Health 12.(1) The "health care principle" means that power for a health matter 9 for an adult should be exercised by an attorney-- 10 (a) in the way least restrictive of the adult's rights; and 11 (b) only if the exercise of the power is appropriate to promote and 12 maintain the adult's health and wellbeing. 13 14 Example of exercising power in the way least restrictive of the adult's rights-- 15 If there is a choice between a more or less intrusive way of meeting an identified 16 need, the less intrusive way should be adopted. (2) In deciding whether the exercise of a power is appropriate, the 17 attorney must, to the greatest extent practicable-- 18 (a) seek the adult's views and wishes and take them into account; and 19 (b) take the information given by the adult's health provider106 into 20 account. 21 (3) Views and wishes may be expressed orally, in writing (for example, 22 in an advance health directive) or in another way, including, for example, by 23 106 See section 80 of the Act (Right of attorney to information).
100 Powers of Attorney SCHEDULE 1 (continued) conduct. 1 (4) The health care principle does not affect any right an adult has to 2 refuse health care. 3 4
101 Powers of Attorney CHEDULE 2 1 ¡S YPES OF MATTERS 2 T schedule 3 3 ART 1--FINANCIAL MATTERS 4 P matter 5 Financial 1.(1) A "financial matter", for a principal, is a matter relating to the 6 principal's financial, property or legal affairs, including, for example, a 7 matter relating to 1 or more of the following-- 8 (a) paying maintenance and accommodation expenses for the 9 principal and the principal's dependants, including, for example, 10 purchasing an interest in, or making another contribution to, an 11 establishment that will maintain or accommodate the principal or 12 a dependant of the principal; 13 (b) paying the principal's debts (including any fees and expenses to 14 which an attorney is entitled under a document made by the 15 principal or under a law); 16 (c) receiving and recovering money payable to the principal; 17 (d) carrying on any trade or business of the principal; 18 (e) performing contracts entered into by the principal; 19 (f) discharging a mortgage over the principal's property; 20 (g) paying rates, taxes, insurance premiums or other outgoings for 21 the principal's property; 22 (h) insuring the principal or the principal's property; 23 (i) otherwise preserving or improving the principal's estate; 24 (j) investing for the principal; 25 (k) continuing investments of the principal, including taking up rights 26
102 Powers of Attorney SCHEDULE 2 (continued) to issues of new shares, or options for new shares, to which the 1 principal becomes entitled by the principal's existing 2 shareholding; 3 (l) undertaking a real estate transaction for the principal; 4 (m) dealing with land under the Land Act 1994 or Land Title Act 5 1994; 6 (n) undertaking a transaction for the principal involving the use of the 7 principal's property as security (for example, for a loan or by way 8 of a guarantee) for an obligation the performance of which is 9 beneficial to the principal; 10 (o) a legal matter involving the principal or the principal's property. 11 (2) A matter relating to the principal's legal affairs includes, for example, 12 a matter relating to-- 13 (a) use of legal services to obtain information about the principal's 14 legal rights; and 15 (b) use of legal services to undertake a transaction; and 16 (c) use of legal services to bring or defend a proceeding before a 17 court, tribunal or other entity (including an application under the 18 Succession Act 1981, part 4107 or an application for compensation 19 arising from a compulsory acquisition); and 20 (d) bringing or defending a proceeding, including settling a claim 21 (whether before or after the start of the proceeding). 22 107 This enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person's estate if adequate provision is not made from the estate for the dependant's proper maintenance and support.
103 Powers of Attorney SCHEDULE 2 (continued) ART 2--PERSONAL MATTER 1 P matter 2 Personal 2. A "personal matter", for a principal, is a matter (other than a special 3 personal matter or special health matter) relating to the principal's care 4 (including health care) or welfare. 5 6 Examples-- 7 A matter relating to 1 or more of the following-- 8 · where the principal lives 9 · with whom the principal lives 10 · whether the principal works and, if so, the kind and place of work and the 11 employer 12 · what education or training the principal undertakes 13 · whether the principal applies for a licence or permit 14 · day-to-day issues, including, for example, diet and dress 15 · health care of the principal. personal matter 16 Special 3. A "special personal matter", for a principal, is a matter relating to 1 17 or more of the following-- 18 (a) making or revoking the principal's will; 19 (b) making or revoking a power of attorney, enduring power of 20 attorney or advance health directive of the principal; 21 (c) exercising the principal's right to vote in a Commonwealth, State 22 or local government election or referendum; 23 (d) consenting to adoption of a child of the principal under 18 years; 24 (e) consenting to marriage of the principal.108 25 108 An attorney may not be given power for a special personal matter.
104 Powers of Attorney SCHEDULE 2 (continued) matter 1 Health 4. A "health matter", for a principal, is a matter relating to health care 2 (other than special health care) of the principal. 3 care 4 Health 5.(1) "Health care", of a principal, is care or treatment of, or a service or 5 a procedure for, the principal-- 6 (a) to diagnose, maintain, or treat the principal's physical or mental 7 condition; and 8 (b) carried out by, or under the supervision of, a health provider; 9 but does not include-- 10 (c) first aid treatment; or 11 (d) a non-intrusive examination made for diagnostic purposes; or 12 (e) the administration of a pharmaceutical drug if-- 13 (i) a prescription is not needed to obtain the drug; and 14 (ii) the drug is normally self-administered; and 15 (iii) the administration is for a recommended purpose and at a 16 recommended dosage level. 17 18 Example of paragraph (d)-- 19 A visual examination of a principal's mouth, throat, nasal cavity, eyes or ears. (2) To avoid any doubt, it is declared that this Act does not-- 20 (a) authorise the carrying out of health care for the purpose of 21 causing the death of the person on whom the health care is carried 22 out; or 23 (b) authorise a person to assist the suicide of another. 24
105 Powers of Attorney SCHEDULE 2 (continued) health matter 1 Special 6. A "special health matter", for a principal, is a matter relating to 2 special health care of the principal.109 3 health care 4 Special 7. "Special health care", of a principal, is health care of the following 5 types-- 6 (a) removal of tissue from the principal while alive110 for donation to 7 someone else; 8 (b) sterilisation of the principal; 9 (c) termination of a pregnancy of the principal; 10 (d) participation by the principal in research or experimental health 11 care; 12 (e) psychiatric health care of the principal prescribed under the 13 regulations;111 14 (f) withholding or withdrawal of life-sustaining measures; 15 (g) other health care of the principal prescribed under the regulations. 16 of tissue for donation 17 Removal 8.(1) "Removal of tissue for donation" to someone else includes 18 removal of tissue from the principal so laboratory reagents, or reference and 19 109 An attorney may not be given power for a special health matter. However, a principal may give a direction about a special health matter in an advance health directive. 110 As an attorney's power ceases on the principal's death, an attorney has no power in relation to tissue donation by a deceased principal. Instead, see the Transplantation and Anatomy Act 1979, particularly section 22. 111 However, if a principal is a person liable to be detained under the Mental Health Act 1974, safeguards apply--see section 37(2) of the Act (Act's relationship with Mental Health Act).
106 Powers of Attorney SCHEDULE 2 (continued) control materials, derived completely or partly from pooled human plasma 1 may be given to the other person. 2 (2) "Tissue" is-- 3 (a) an organ, blood or part of a human body; or 4 (b) a substance that may be extracted from an organ, blood or part of 5 a human body. 6 7 Sterilisation 9.(1) "Sterilisation" is health care of a principal, who is, or is reasonably 8 likely to be, fertile, intended, or reasonably likely, to make the principal, or 9 ensure the principal is, permanently infertile. 10 (2) Sterilisation does not include health care primarily to treat organic 11 malfunction or disease of the principal. 12 13 Termination 10. "Termination", of a pregnancy of a principal, does not include 14 health care primarily to treat organic malfunction or disease of the principal. 15 reason for treatment 16 Primary 11. "Health care primarily to treat organic malfunction or disease", 17 of a principal, is health care without which an organic malfunction or 18 disease of the principal is likely to cause serious or irreversible damage to 19 the principal's physical health. 20 21 Examples-- 22 1. Health care involving sterilisation may be primarily to treat organic 23 malfunction or disease if the principal has cancer affecting the reproductive system 24 or cryptorchidism. 25 2. A procedure involving termination of a pregnancy may be primarily to treat 26 organic malfunction if the principal is a pregnant woman requiring abdominal surgery 27 for injuries sustained in an accident.
107 Powers of Attorney SCHEDULE 2 (continued) measures 1 Life-sustaining 12. "Life-sustaining measures" is health care intended to sustain or 2 prolong life and which supplants or maintains the operation of vital bodily 3 functions that are temporarily or permanently incapable of independent 4 operation, and includes assisted ventilation, artificial nutrition and hydration 5 and cardiopulmonary resuscitation. 6 7
108 Powers of Attorney CHEDULE 3 1 ¡S ICTIONARY 2 D section 3 3 "adult guardian" see section 125 and 149. 4 "advance health directive" see section 35. 5 "approved form" means a form approved by the chief executive under 6 section 160. 7 "attorney" means-- 8 (a) an attorney under a power of attorney, enduring power of attorney 9 or advance health directive; or 10 (b) a statutory health attorney. 11 "capacity", for a person for a matter, means the person is capable of-- 12 (a) understanding the nature and effect of decisions about the matter; 13 and 14 (b) communicating the decisions in some way.112 15 "close friend", of a person, means another person who has a close personal 16 relationship with the first person and a personal interest in the first 17 person's welfare. 18 "commissioner for declarations" see the Justices of the Peace and 19 Commissioners for Declarations Act 1991. 20 "conflict transaction" see section 72. 21 112 A person dealing with an attorney may be able to rely on the witness' certificate on a document as evidence of the principal's capacity to make the document--section 98(1) (Protection for person dealing with attorney and next person if unaware of invalidity). Also, if an attorney's power for a matter depends on the principal having impaired capacity for a matter, a person dealing with the attorney may ask for evidence, for example a medical certificate, to establish that the principal has the disability--section 33(5) (When attorney's power exercisable).
109 Powers of Attorney SCHEDULE 3 (continued) "court" means the Supreme Court. 1 "de facto spouse", of a person concerned, means a person who-- 2 (a) has lived in a connubial relationship with the person concerned 3 for a continuous period of at least 5 years ending at the relevant 4 time; or 5 (b) within the period of 6 years ending at the relevant time, has lived 6 in a connubial relationship with the person concerned for periods 7 totalling at least 5 years that include a period ending at the relevant 8 time. 9 "dependant", of a principal, means a person who is completely or mainly 10 dependent on the principal. 11 "eligible attorney" see section 29. 12 "eligible signer" see section 30. 13 "eligible witness" see section 31. 14 "enduring document" see section 28. 15 "enduring power of attorney" see section 32. 16 "financial matter" see schedule 2, section 1. 17 "general power of attorney made under this Act" see section 8. 18 "general principles" see schedule 1, part 1. 19 "health care" see schedule 2, section 5. 20 "health care primarily to treat organic malfunction or disease" see 21 schedule 2, section 11. 22 "health care principle" see schedule 1, section 12. 23 "health matter" see schedule 2, section 4. 24 "health provider" means a person who provides health care in the practice 25 of a profession or the ordinary course of business. 26 27 Example-- 28 dentist "impaired capacity", for a person for a matter, means the person does not 29
110 Powers of Attorney SCHEDULE 3 (continued) have capacity for the matter. 1 "insolvent" includes external administration (for example, liquidation, 2 receivership or compromise entered into with creditors) under the 3 Corporations Law or a similar law of a foreign jurisdiction. 4 "interested person" means a person who has an appropriate interest in the 5 principal. 6 "life-sustaining measures" see schedule 2, section 12. 7 "matter" includes a type of matter. 8 9 Example-- 10 A reference in section 10(1)(a) to a person appointing an attorney to exercise 11 power for a matter includes a reference to a person appointing an attorney to exercise 12 power for a type of matter (for example, certain, but not all, financial matters). "paid carer", for a principal, means someone who-- 13 (a) performs services for the principal's care; and 14 (b) receives remuneration from any source for the services, other 15 than-- 16 (i) a carer payment or other benefit received from the 17 Commonwealth or a State for providing home care for the 18 principal; or 19 (ii) remuneration attributable to the principle113 that damages 20 may be awarded by a court for voluntary services performed 21 for the principal's care. 22 "personal matter" see schedule 2, section 2. 23 "power", for a matter, means power to make all decisions about the matter 24 and otherwise exercise the power. 25 113 This principle was established in Griffiths v Kerkemeyer (1977) 139 CLR 161--see Queensland Law Reform Commission Report No. 45, The assessment of damages in personal injury and wrongful death litigation, Griffiths v Kerkemeyer, Section 15C Common Law Practice Act 1867, October 1993. The Common Law Practice Act 1867, section 15C has been relocated to the Supreme Court Act 1995 as section 23.
111 Powers of Attorney SCHEDULE 3 (continued) "power of attorney given as security" see section 10(1). 1 "principal" means-- 2 (a) in the context of a power of attorney, enduring power of attorney 3 or advance health directive or an attorney under 1 of these 4 documents--the person who made the document or appointed the 5 attorney; or 6 (b) in the context of a statutory health attorney--the person for whom 7 the statutory health attorney is statutory health attorney. 8 "relation", of a person, means-- 9 (a) a spouse of the first person; or 10 (b) a person who is related to the first person by blood, marriage or 11 adoption or because of a de facto relationship, foster relationship 12 or a relationship arising because of a legal arrangement; or 13 14 Example of legal arrangement-- 15 1. Court order for custody. 16 2. Trust arrangement between trustee and beneficiary. (c) a person on whom the first person is completely or mainly 17 dependent; or 18 (d) a person who is completely or mainly dependent on the first 19 person; or 20 (e) a person who is a member of the same household as the first 21 person. 22 "removal of tissue for donation" see schedule 2, section 8(1). 23 "special health care" see schedule 2, section 7. 24 "special health matter" see schedule 2, section 6. 25 "special personal matter" see schedule 2, section 3. 26 "spouse" includes a de facto spouse. 27 "statutory health attorney" see section 62. 28 "sterilisation" see schedule 2, section 9. 29
112 Powers of Attorney SCHEDULE 3 (continued) "term" includes condition, limitation and instruction. 1 "termination" see schedule 2, section 10. 2 "tissue" see schedule 2, section 8(2). 3 4 © State of Queensland 1997