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This is a Bill, not an Act. For current law, see the Acts databases.
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
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