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PARLIAMENT OF VICTORIA
Instruments (Enduring Powers of Attorney) Act
2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 1
3. Amendment of Part XI of the Instruments Act 1958 2
4. New Part XIA inserted in the Instruments Act 1958 2
PART XIA--ENDURING POWERS OF ATTORNEY 2
Division 1--Introductory 2
114. Interpretation 2
Division 2--Making an Enduring Power of Attorney 4
115. What is an enduring power of attorney? 4
116. Recognition of enduring powers made in other States
and Territories 4
117. When is the attorney's power exercisable? 4
118. When does a donor have capacity to make an enduring
power of attorney? 5
119. Appointment of one or more attorneys 6
120. Appointment of alternative attorney 7
121. Can a person who is insolvent be an attorney? 7
122. Attorney can be head of religious order 7
123. What are the formal requirements for making an
enduring power of attorney? 8
124. Who can sign for the donor? 8
125. Who can be a witness? 9
125A. What must the witnesses certify? 9
125B. Signature and undertaking of attorney required 10
125C. Enduring power of attorney to be a deed 11
Division 3--Role of Attorney 11
125D. Requirement to keep records 11
125E. Powers of attorney to execute instruments etc. 11
125F. Role of attorney where guardian appointed 12
125G. Role of attorney where administrator appointed 12
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Clause Page
Division 4--How is an Enduring Power of Attorney
Revoked? 12
Victorian Legislation and Parliamentary Documents
Subdivision 1--Introductory 12
125H. Division not to affect revocation under other laws 12
Subdivision 2--Revocation by Donor 13
125I. Revocation in writing 13
125J. Revocation by later enduring power of attorney 13
125K. Death 13
Subdivision 3--Revocation According to Terms 14
125L. According to terms 14
Subdivision 4--Revocation by Attorney 14
125M. Resignation 14
125N. Legal incapacity 14
125O. Revocation if attorney becomes insolvent 14
125P. Death 15
Subdivision 5--Revocation by Tribunal 15
125Q. Revocation by Tribunal 15
Subdivision 6--Effect of Revocation if More than One
Attorney 15
125R. Effect of revocation if more than one attorney 15
Division 5--Protection from Liability 15
125S. Definitions 15
125T. Protection if Court or Tribunal has given advice or
direction or recommendation 16
125U. Protection for attorney and third persons who are
unaware of invalidity 17
Division 6--Jurisdiction of Tribunal 17
Subdivision 1--General Powers of Tribunal 17
125V. Application to Tribunal 17
125W. Who is entitled to notice? 18
125X. General power of revocation of Tribunal 19
125Y. Declaration of invalidity 20
125Z. Further powers of Tribunal 20
125ZA. Advisory opinions 21
125ZB. Records and audit 21
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Clause Page
Subdivision 2--Rehearings 21
125ZC. Application for rehearing 21
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125ZD. Parties and notice 22
125ZE. Rehearing 23
125ZF. Effect of first instance order pending rehearing 23
Division 7--General 24
Subdivision 1--Proof of Enduring Power of Attorney 24
125ZG. Proof of enduring power of attorney 24
125ZH. Who may certify the copy? 24
125ZI. Proof by certified copy of certified copy 25
125ZJ. Other forms of proof not affected 25
125ZK. References to enduring powers of attorney 25
Subdivision 2--Approval of Forms 26
125ZL. Approved forms 26
Subdivision 3--Regulations 26
125ZM. Regulations 26
Division 8--Transitional 26
125ZN. Saving for existing enduring powers of attorney 26
125ZO. Existing powers of attorney from other jurisdictions 27
125ZP. Continuation of provisions relating to protected persons 27
5. Schedule 13 repealed 28
6. New clause 40F in Part 12 of Schedule 1 to the Victorian
28
Civil and Administrative Tribunal Act 1998
40F. Constitution of Tribunal for proceedings 28
7. Amendment of Part 12 of Schedule 1 to the Victorian Civil
29
and Administrative Tribunal Act 1998
8. Amendment of Guardianship and Administration Act 1986 29
ENDNOTES 30
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PARLIAMENT OF VICTORIA
Initiated in Assembly 26 August 2003
Victorian Legislation and Parliamentary Documents
A BILL
to amend the Instruments Act 1958 to revise the laws relating to
enduring powers of attorney and for other purposes.
Instruments (Enduring Powers of
Attorney) Act 2003
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to amend the
Instruments Act 1958 to revise the laws relating
to enduring powers of attorney.
5 2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day to be proclaimed.
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s. 3
Act No.
(2) If this Act does not come into operation before
1 July 2004, it comes into operation on that day.
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See: 3. Amendment of Part XI of the Instruments Act 1958
Act No.
6279/1958.
(1) In section 104 of the Instruments Act 1958 the
Reprint No. 10
5 definitions of "enduring power of attorney" and
as at
1 January
"Public Trustee" are repealed.
2003.
LawToday:
(2) After section 105(2) of the Instruments Act 1958
www.dms.
insert--
dpc.vic.
gov.au
"(3) Except as expressly provided in Part XIA,
10 this Part does not apply to enduring powers
of attorney.".
(3) Sections 114 to 118 of the Instruments Act 1958
are repealed.
4. New Part XIA inserted in the Instruments Act 1958
15 After Part XI of the Instruments Act 1958
insert--
'PART XIA--ENDURING POWERS OF
ATTORNEY
Division 1--Introductory
20 114. Interpretation
(1) In this Part--
"approved form" means a form approved
by the Secretary under section 125ZL;
"donor" means a person who makes an
25 enduring power of attorney;
"enduring power of attorney" means a
power of attorney referred to in
section 115;
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"insolvent" means insolvent under
administration as that expression is
defined in the Corporations Act;
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"Public Advocate" means the person
5 appointed as the Public Advocate under
the Guardianship and
Administration Act 1986;
"relative" means--
(a) spouse or domestic partner (within
10 the meaning of the Guardianship
and Administration Act 1986);
or
(b) son or daughter; or
(c) mother or father; or
15 (d) brother, sister, half-brother, half-
sister, adoptive brother, adoptive
sister, step-brother or step-sister;
or
(e) grandfather or grandmother; or
20 (f) grandson or granddaughter; or
(g) uncle or aunt; or
(h) nephew or niece;
"Secretary" means Secretary to the
Department of Justice;
25 "Tribunal" means the Victorian Civil and
Administrative Tribunal established by
the Victorian Civil and
Administrative Tribunal Act 1998.
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Division 2--Making an Enduring Power of
Attorney
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115. What is an enduring power of attorney?
(1) By an enduring power of attorney, an adult
5 person ("donor") may--
(a) authorise one or more persons
("attorneys") to do anything on behalf
of the donor that the donor can lawfully
authorise an attorney to do; and
10 (b) provide conditions and limitations on,
and instructions about, the exercise of
the power.
(2) Despite any rule of law to the contrary, an
enduring power of attorney is not revoked by
15 the subsequent legal incapacity of the donor
of the power.
116. Recognition of enduring powers made in
other States and Territories
If an enduring power of attorney is made in
20 another State or Territory and complies with
the requirements of that other State or
Territory, then, to the extent the powers it
gives could validly have been given by an
enduring power of attorney made under this
25 Part, the enduring power of attorney is to be
taken to be an enduring power of attorney
made under, and in compliance with, this
Part.
117. When is the attorney's power exercisable?
30 (1) A donor may specify in an enduring power
of attorney a time from which, circumstance
in which, or occasion on which, a power is
exercisable.
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(2) If the enduring power of attorney does not
specify a time from which, circumstance in
which, or occasion on which, a power
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becomes exercisable, the power becomes
5 exercisable once the enduring power of
attorney is made.
118. When does a donor have capacity to make
an enduring power of attorney?
(1) A donor may make an enduring power of
10 attorney only if the donor understands the
nature and effect of the enduring power of
attorney.
(2) Understanding the nature and effect of the
enduring power of attorney includes
15 understanding the following matters--
(a) that the donor may, in the power of
attorney, specify conditions or
limitations on, or instructions about, the
exercise of the power to be given to the
20 attorney;
(b) when the power is exercisable;
(c) that once the power is exercisable, the
attorney has the same powers as the
donor had (when not under a legal
25 incapacity) to do anything for which the
power is given subject to any
limitations or restrictions on exercising
the power included in the enduring
power of attorney;
30 (d) that the donor may revoke the enduring
power of attorney at any time the donor
is capable of making an enduring power
of attorney;
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(e) that the power the attorney is given
continues even if the donor
subsequently ceases to have legal
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capacity;
5 (f) that at any time that the donor is not
capable of revoking the enduring power
of attorney, the donor is unable to
effectively oversee the use of the
power.
10 Note: It is advisable for the witness to make a written
record of the evidence as a result of which the
witness considers that the donor understands
these matters.
119. Appointment of one or more attorneys
15 (1) A donor may in an enduring power of
attorney appoint--
(a) a single attorney; or
(b) 2 or more joint attorneys, or
(c) 2 or more joint and several attorneys.
20 (2) If 2 or more joint attorneys are appointed, all
the attorneys can act only if they all agree
and any documents must be signed by all of
them.
(3) If 2 or more joint and several attorneys are
25 appointed--
(a) all the attorneys can act together if they
all agree and any documents can be
signed by all of them; or
(b) any of the attorneys can act and sign
30 documents together or alone.
(4) An attorney must be at least 18 years old.
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120. Appointment of alternative attorney
(1) A donor may in an enduring power of
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attorney appoint an adult person as an
alternative attorney for a person appointed as
5 attorney.
(2) An alternative attorney may act as attorney
under the enduring power of attorney only in
the event of the death or during the period of
the absence or legal incapacity of the
10 attorney for whom the alternative attorney is
appointed.
121. Can a person who is insolvent be an
attorney?
A person is not eligible to be appointed as an
15 attorney under an enduring power of attorney
if the person is insolvent.
122. Attorney can be head of religious order
(1) A person who is a member of a religious
order may appoint the person who is the
20 holder of the position of Victorian head of
that order or the head of a local chapter of
that order in Victoria as the attorney under
an enduring power of attorney.
(2) If an attorney is appointed under an enduring
25 power of attorney in accordance with sub-
section (1), the person who is from time to
time the holder of the position of Victorian
head of the religious order or head of the
relevant chapter of the order is deemed to be
30 the attorney appointed under that enduring
power of attorney.
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123. What are the formal requirements for
making an enduring power of attorney?
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(1) An enduring power of attorney must be in
the approved form.
5 Note: An approved form is a form approved by the
Secretary to the Department of Justice under
section 125ZL.
(2) An enduring power of attorney must be
signed--
10 (a) by the donor of the power; or
(b) by direction, and in the presence, of the
donor of the power, by an eligible
person.
(3) The power of attorney must be signed and
15 dated by 2 adult witnesses in the presence of
the donor and each other.
(4) The witnesses must be in accordance with
section 125.
(5) The enduring power of attorney must contain
20 a certificate signed by each witness in
accordance with section 125A.
124. Who can sign for the donor?
A person is eligible to sign an enduring
power of attorney for the donor if the
25 person--
(a) is at least 18 years old; and
(b) is not a witness for the enduring power
of attorney; and
(c) is not an attorney for the donor or a
30 person nominated as an attorney in the
enduring power of attorney.
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125. Who can be a witness?
(1) A person cannot be a witness to an enduring
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power of attorney if the person is--
(a) the donor of the power; or
5 (b) the person appointed as attorney.
(2) Only one of the witnesses can be a relative of
the donor of the power or of the person
appointed as attorney.
(3) One of the witnesses must be a person
10 authorised by law to witness the signing of a
statutory declaration.
125A. What must the witnesses certify?
(1) If an enduring power of attorney is signed by
the donor, it must include a certificate signed
15 by each witness stating that--
(a) the donor signed the enduring power of
attorney freely and voluntarily in the
presence of the witness; and
(b) at the time, the donor appeared to the
20 witness to have the capacity necessary
to make the enduring power of
attorney.
(2) If an enduring power of attorney is signed by
a person for the donor, it must include a
25 certificate signed by each witness stating
that--
(a) the donor of the power directed the
person to sign the enduring power of
attorney for the donor; and
30 (b) the donor of the power gave that
direction freely and voluntarily in the
presence of the witness; and
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(c) the person signed it in the presence of
the donor and the witness; and
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(d) at the time, the donor appeared to the
witness to have the capacity necessary
5 to make the enduring power of
attorney.
125B. Signature and undertaking of attorney
required
(1) An enduring power of attorney is effective in
10 relation to an attorney only if the attorney
has accepted the appointment in accordance
with this section.
(2) The attorney must sign and date a statement
of acceptance.
15 (3) The statement of acceptance must be in the
approved form.
Note: An approved form is a form approved by the
Secretary to the Department of Justice under
section 125ZL.
20 (4) The statement of acceptance must be
endorsed on or attached to the enduring
power of attorney.
(5) The statement of acceptance must include an
undertaking by the person accepting
25 appointment as attorney--
(a) to exercise the powers conferred by the
enduring power of attorney with
reasonable diligence to protect the
interests of the donor; and
30 (b) to avoid acting where there is any
conflict of interest between the interests
of the donor and the attorney's interests;
and
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(c) to exercise the powers conferred by the
enduring power of attorney in
accordance with this Part.
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125C. Enduring power of attorney to be a deed
5 An enduring power of attorney that complies
with this Division is to be taken to be and
have effect as a deed, even if it is not
expressed to be executed under seal.
Division 3--Role of Attorney
10 125D. Requirement to keep records
An attorney under an enduring power of
attorney must keep and preserve accurate
records and accounts of all dealings and
transactions made under the power.
15 125E. Powers of attorney to execute instruments
etc.
(1) The attorney under an enduring power of
attorney may, if the attorney thinks fit--
(a) execute any instrument with the
20 attorney's own signature, and, where
sealing is required or employed, with
the attorney's own seal; and
(b) do any other thing in the attorney's own
name.
25 (2) An instrument executed by the attorney
under an enduring power of attorney must be
executed in such a way as to show that the
attorney does so as attorney for the donor of
the power.
30 (3) An instrument executed or thing done in the
way specified in this section is as effective as
if executed or done by the donor--
(a) with the donor's signature; or
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(b) with the donor's signature and seal; or
(c) in the donor's name.
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125F. Role of attorney where guardian
appointed
5 (1) An enduring power of attorney does not
authorise the attorney to make a decision
about the medical treatment of the donor of
the power.
(2) If a decision made by a guardian or enduring
10 guardian within the meaning of the
Guardianship and Administration Act
1986 in the exercise of a power as guardian
or enduring guardian conflicts with a
decision made by an attorney under an
15 enduring power of attorney, the decision of
the guardian or enduring guardian prevails.
125G. Role of attorney where administrator
appointed
If the Tribunal makes an administration
20 order under the Guardianship and
Administration Act 1986 in respect of the
person who is the donor of an enduring
power of attorney, the attorney may exercise
power under the enduring power of attorney
25 only to the extent authorised by the Tribunal.
Division 4--How is an Enduring Power of
Attorney Revoked?
Subdivision 1--Introductory
125H. Division not to affect revocation under
30 other laws
(1) This Division does not limit the events by
which or the circumstances in which an
enduring power of attorney--
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(a) is revoked whether orally or in writing
or in another way; or
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(b) is terminated by implication or
operation of law.
5 (2) Without limiting sub-section (1), an enduring
power of attorney may be revoked in any
way that a power of attorney may be
revoked.
Subdivision 2--Revocation by Donor
10 125I. Revocation in writing
The donor of an enduring power of attorney
may revoke the enduring power of attorney
in writing in the approved form.
Note 1: An approved form is a form approved by the
15 Secretary to the Department of Justice under
section 125ZL.
Note 2: This is not the only way a power of attorney
can be revoked in writing. See section 125H.
125J. Revocation by later enduring power of
20 attorney
A donor's enduring power of attorney is
revoked, to the extent of any inconsistency,
by a later enduring power of attorney of the
donor.
25 125K. Death
An enduring power of attorney is revoked
when the donor dies.
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Subdivision 3--Revocation According to Terms
125L. According to terms
Victorian Legislation and Parliamentary Documents
An enduring power of attorney is revoked
according to its terms.
5 Example
If an enduring power of attorney is expressed to
operate for or during a specified period, it is revoked
at the end of that period.
Subdivision 4--Revocation by Attorney
10 125M. Resignation
(1) An attorney may resign as attorney by signed
notice given to the donor.
(2) Despite sub-section (1), if a donor ceases to
have legal capacity, an attorney under an
15 enduring power of attorney may only resign
as attorney with the leave of a court or the
Tribunal.
(3) If an attorney under an enduring power of
attorney resigns, the power of attorney is
20 revoked to the extent that it confers power on
the attorney.
125N. Legal incapacity
If an attorney under an enduring power of
attorney ceases to have legal capacity, the
25 power of attorney is revoked to the extent
that it confers power on the attorney.
125O. Revocation if attorney becomes insolvent
If an attorney under an enduring power of
attorney becomes insolvent, the power of
30 attorney is revoked to the extent that it
confers power on the attorney.
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125P. Death
If an attorney under an enduring power of
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attorney dies, the power of attorney is
revoked to the extent that it confers power on
5 the attorney.
Subdivision 5--Revocation by Tribunal
125Q. Revocation by Tribunal
An enduring power of attorney may be
revoked by the Tribunal under Division 6.
10 Subdivision 6--Effect of Revocation if More
than One Attorney
125R. Effect of revocation if more than one
attorney
(1) If 2 or more persons are appointed jointly
15 and severally as attorneys under an enduring
power of attorney, the revocation of the
power in relation to one attorney does not
affect the appointment or powers of the
remaining attorneys.
20 (2) If 2 or more persons are appointed jointly
(but not jointly and severally) as attorneys
under an enduring power of attorney, the
revocation of the power in relation to one
joint attorney also revokes the power in
25 relation to each of the other joint attorneys.
Division 5--Protection from Liability
125S. Definitions
In this Division--
"invalidity", in relation to a power under an
30 enduring power of attorney, includes
invalidity because--
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(a) the power is not exercisable at the
time when, circumstance in which,
or occasion on which it is
Victorian Legislation and Parliamentary Documents
purportedly exercised; or
5 (b) the enduring power of attorney
has been declared to be invalid by
a court or the Tribunal; or
(c) the enduring power of attorney
has been revoked; or
10 (d) the enduring power of attorney
was made in another State or
Territory and does not comply
with the requirements of that other
State or Territory;
15 "know" in relation to the invalidity of a
power, includes--
(a) know of the happening of an event
(such as the death of the donor)
that invalidates the power; or
20 (b) have reason to believe the power
is invalid.
125T. Protection if Court or Tribunal has given
advice or direction or recommendation
An attorney under an enduring power of
25 attorney who acts in compliance with the
advice, directions or recommendations of--
(a) the Supreme Court in relation to the
enduring power of attorney; or
(b) the Tribunal under this Part--
30 is deemed to have complied with this Part
unless the attorney knowingly gave the Court
or the Tribunal false or misleading
information relevant to the advice, directions
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or recommendations of the Court or the
Tribunal.
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125U. Protection for attorney and third persons
who are unaware of invalidity
5 (1) An attorney who, in good faith and without
knowing a power under the enduring power
of attorney is invalid, purports to exercise the
power, is entitled as against the donor and
any other person, to rely on the power
10 despite the invalidity.
(2) A person (and any person claiming under
that person) who, in good faith and without
knowing a power under an enduring power
of attorney is invalid, acts in reliance on the
15 purported exercise of the power by an
attorney, is entitled as against the donor and
any other person to rely on the power despite
the invalidity.
Division 6--Jurisdiction of Tribunal
20 Subdivision 1--General Powers of Tribunal
125V. Application to Tribunal
(1) An application may be made to the Tribunal
for a declaration, order, direction or
recommendation about--
25 (a) any matter or question relating to--
(i) the scope of an attorney's powers
under an enduring power of
attorney; or
(ii) the exercise of any power by an
30 attorney under an enduring power
of attorney; or
(b) any other thing in or related to this Part.
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(2) An application may be made by--
(a) the Public Advocate; or
Victorian Legislation and Parliamentary Documents
(b) the donor of the enduring power of
attorney; or
5 (c) an attorney under the enduring power
of attorney; or
(d) another person whom the Tribunal is
satisfied has a special interest in the
affairs of the donor.
10 125W. Who is entitled to notice?
(1) Notice must be given under this section of--
(a) an application to the Tribunal under this
Subdivision;
(b) the hearing of the application;
15 (c) any hearing of the Tribunal under this
Subdivision in relation to an enduring
power of attorney;
(d) any order made by the Tribunal in
respect of the application or an
20 enduring power of attorney.
(2) The persons entitled to notice are--
(a) the Public Advocate;
(b) the donor of the enduring power of
attorney;
25 (c) any attorney under the enduring power
of attorney;
(d) any person specified in sub-section (3)
to whom the Tribunal directs that notice
is to be given.
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(3) The Tribunal may direct that notice is to be
given to--
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(a) the nearest relative of the donor;
(b) the primary carer (if any) of the donor;
5 (c) any guardian of the donor;
(d) any person appointed as alternative
guardian of the donor under the
Guardianship and Administration
Act 1986;
10 (e) any administrator of the estate of the
donor;
(f) any person who has a special interest in
the affairs of the donor.
(4) In this section "administrator",
15 "guardian", "nearest relative" and
"primary carer" have the same meanings
as they have in the Guardianship and
Administration Act 1986.
125X. General power of revocation of Tribunal
20 (1) The Tribunal, on its own initiative or on an
application under section 125V, may revoke
the appointment of an attorney under an
enduring power of attorney if the Tribunal is
satisfied that it is in the best interests of the
25 donor to do so.
(2) Before making a decision under sub-section
(1), the Tribunal must be satisfied that the
donor lacks the capacity to make an enduring
power of attorney.
19
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125Y. Declaration of invalidity
(1) The Tribunal, on its own initiative or on an
Victorian Legislation and Parliamentary Documents
application under section 125V, may declare
an enduring power of attorney to be invalid
5 if it is satisfied that--
(a) the donor lacked capacity at the time
the enduring power of attorney was
made; or
(b) the enduring power of attorney does not
10 comply with the requirements of this
Part; or
(c) the enduring power of attorney is
invalid for another reason, for example,
the donor was induced to make it by
15 dishonesty or undue influence.
(2) If the Tribunal declares an enduring power of
attorney invalid, the power is void from the
start.
125Z. Further powers of Tribunal
20 (1) The Tribunal, on its own initiative or on an
application under section 125V, may--
(a) make a declaration or make
recommendations or give any directions
it considers necessary in relation to an
25 enduring power of attorney;
(b) vary the effect of an enduring power of
attorney;
(c) suspend for a specified period an
enduring power of attorney, either
30 generally or in respect of a specific
matter;
(d) make any order it considers necessary
in relation to an enduring power of
attorney.
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(2) Without limiting sub-section (1), the
Tribunal, on its own initiative, may give
directions to an attorney under an enduring
Victorian Legislation and Parliamentary Documents
power of attorney in respect of any matter.
5 125ZA. Advisory opinions
The Tribunal may give an advisory opinion
on any matter relating to an enduring power
of attorney that is referred to it by a person
referred to in section 125V(2).
10 125ZB. Records and audit
(1) In the case of an enduring power of attorney,
the Tribunal may make an order that--
(a) the attorney lodges with the Tribunal,
accounts or other documents relating to
15 the exercise of the power for a specified
period; or
(b) the accounts be examined or audited by
a person appointed by the Tribunal and
that a copy of the person's report be
20 given to the Tribunal and the applicant.
(2) The Tribunal may make the order on its own
initiative or on the application of the donor
or the Public Advocate or another interested
person.
25 (3) The Tribunal may make an order about
payment to a person appointed under sub-
section (1) of the costs of the examination or
audit of accounts.
Subdivision 2--Rehearings
30 125ZC. Application for rehearing
(1) If the Tribunal makes an order in respect of
an application under Subdivision 1 (other
than an order suspending an enduring power
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s. 4
Act No.
of attorney), a party or a person entitled to
notice of the application may apply to the
Tribunal for a rehearing of the application.
Victorian Legislation and Parliamentary Documents
(2) A person entitled to notice of the application
5 who was not, or did not become, a party may
apply for a rehearing only if the Tribunal
gives leave.
(3) Sub-section (2) does not apply to the Public
Advocate.
10 (4) An application for a rehearing, or for leave to
apply for a rehearing, must be made within
28 days after the day of the order.
(5) If the Tribunal gives oral reasons for making
an order and a party then requests written
15 reasons under section 117 of the Victorian
Civil and Administrative Tribunal Act
1998, the day on which the written reasons
are given to the party is deemed to be the day
of the order for the purposes of sub-
20 section (4).
(6) A person cannot apply for a rehearing of an
application if--
(a) the order was made by the Tribunal
constituted by the President, whether
25 with or without others; or
(b) the application was for a rehearing or
for leave to apply for a rehearing.
125ZD. Parties and notice
(1) A party to the proceeding on an application
30 under Subdivision 1 is a party to a rehearing
of the application under this Subdivision, in
addition to any other parties.
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Act No.
(2) A person who was entitled to notice of the
making of an application under
Subdivision 1 is entitled to notice of an
Victorian Legislation and Parliamentary Documents
application for a rehearing of the application
5 under this Subdivision.
125ZE. Rehearing
(1) On an application under section 125ZC, the
Tribunal must rehear the matter and, for that
purpose, the Tribunal has all the functions
10 and powers that the Tribunal had with
respect to the matter at first instance.
(2) In determining a rehearing, the Tribunal
may--
(a) affirm the order of the Tribunal at first
15 instance; or
(b) vary the order of the Tribunal at first
instance; or
(c) set aside the order of the Tribunal at
first instance and make another order in
20 substitution for it.
125ZF. Effect of first instance order pending
rehearing
(1) Subject to sub-section (2), the making of an
application for a rehearing does not affect the
25 operation of any order to which the
application relates or prevent the taking of
action to enforce the order.
(2) The Tribunal may make an order staying the
operation of an order pending the
30 determination of the rehearing of the
application to which the order relates.
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Act No.
Division 7--General
Victorian Legislation and Parliamentary Documents
Subdivision 1--Proof of Enduring Power of
Attorney
125ZG. Proof of enduring power of attorney
5 (1) An enduring power of attorney may be
proved by a copy of the enduring power of
attorney certified in accordance with this
section and section 125ZH.
(2) Each page, other than the last page, of the
10 copy must be certified to the effect that the
copy is a true and complete copy of the
corresponding page of the original.
(3) The last page of the copy must be certified to
the effect that the copy is a true and complete
15 copy of the original.
125ZH. Who may certify the copy?
(1) Certification of a copy of an enduring power
of attorney must be by one of the following
persons--
20 (a) a justice of the peace;
(b) a legal practitioner;
(c) a public notary;
(d) any officer authorised by law to
administer an oath;
25 (e) a financial services licensee;
(f) a regulated principal;
(g) a person of a prescribed class.
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Act No.
(2) In this section--
"financial services licensee" means a
Victorian Legislation and Parliamentary Documents
financial services licensee (as defined
in section 761A of the Corporations
5 Act) whose licence covers dealing in
securities;
"regulated principal" means a regulated
principal (as defined in section 1430 of
the Corporations Act) who is authorised
10 by Subdivision D of Division 1 of
Part 10.2 of that Act to deal in
securities.
125ZI. Proof by certified copy of certified copy
(1) If a copy of an enduring power of attorney
15 has been certified in accordance with
sections 125ZG and 125ZH, the enduring
power of attorney may also be proved by a
copy, certified in accordance with those
sections, of the certified copy.
20 (2) For the purposes of sub-section (1),
references in section 125ZG to the original
power of attorney are to be taken to be
references to the certified copy from which
the further copy is made.
25 125ZJ. Other forms of proof not affected
This Division does not prevent an enduring
power of attorney being proved in any other
way.
125ZK. References to enduring powers of attorney
30 In this Part a reference to an enduring power
of attorney includes a reference to a copy of
the enduring power of attorney that complies
with the requirements of this Division.
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Subdivision 2--Approval of Forms
125ZL. Approved forms
Victorian Legislation and Parliamentary Documents
(1) The Secretary may approve forms for use
under this Part.
5 (2) The Secretary must publish in the
Government Gazette any form approved
under this Part.
(3) If a document is required under this Part to
be in the approved form, it is sufficient if the
10 document is to the like effect of the approved
form.
Subdivision 3--Regulations
125ZM. Regulations
The Governor in Council may make
15 regulations for or with respect to any matter
or thing that is authorised or required to be
prescribed or necessary to be prescribed for
the purposes of this Part.
Division 8--Transitional
20 125ZN. Saving for existing enduring powers of
attorney
An enduring power of attorney under Part XI
existing immediately before the
commencement of the Instruments
25 (Enduring Powers of Attorney) Act 2003
has effect on and after that commencement
as if the enduring power of attorney had been
made under Division 2 of this Part.
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125ZO. Existing powers of attorney from other
jurisdictions
Victorian Legislation and Parliamentary Documents
Section 116 applies to an enduring power of
attorney whether made before or after the
5 commencement of the Instruments
(Enduring Powers of Attorney) Act 2003.
125ZP. Continuation of provisions relating to
protected persons
(1) If--
10 (a) the donor of an enduring power of
attorney was a protected person
immediately before the commencement
of the Instruments (Enduring Powers
of Attorney) Act 2003; and
15 (b) the enduring power of attorney was in
force immediately before that
commencement--
the enduring power of attorney continues in
force until it is revoked and the powers and
20 duties of State Trustees under the State
Trustees (State Owned Company) Act
1994 in relation to the estates of protected
persons do not apply in relation to the estate
of the donor so long as the enduring power
25 of attorney is effective.
(2) Despite sub-section (1), until State Trustees
has notice of an enduring power of attorney,
any action taken by State Trustees under the
State Trustees (State Owned Company)
30 Act 1994 in respect of the protected person
is valid and effectual.
(3) In this section "protected person" and
"State Trustees" have the same meanings
as they have in the State Trustees (State
35 Owned Company) Act 1994.'.
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Act No.
5. Schedule 13 repealed
Schedule 13 to the Instruments Act 1958 is
Victorian Legislation and Parliamentary Documents
repealed.
See: 6. New clause 40F in Part 12 of Schedule 1 to the
Act No.
5 Victorian Civil and Administrative Tribunal Act
53/1998.
Reprint No. 3 1998
as at
1 July 2003
In Part 12 of Schedule 1 to the Victorian Civil
and
and Administrative Tribunal Act 1998, before
amending
Act Nos
clause 41 insert--
18/2003 and
30/2003.
10 "40F. Constitution of Tribunal for proceedings
LawToday:
www.dms.
The Tribunal is to be constituted for the
dpc.vic.
gov.au purposes of a rehearing under Subdivision 2
of Division 6 of Part XIA of the
Instruments Act 1958 by--
15 (a) a senior member or presidential
member, if the order at first instance
was made by the Tribunal constituted
by an ordinary member;
(b) a presidential member, if the order at
20 first instance was made by the Tribunal
constituted by a senior member;
(c) a judicial member, if the order at first
instance was made by the Tribunal
constituted by a Deputy President;
25 (d) a Vice President, if the order at first
instance was made by the Tribunal
constituted by more than one member
(except where one or more of the
members was a Vice President);
30 (e) the President, if the order at first
instance was made by the Tribunal
constituted by a Vice President
(whether with or without others).".
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Act No.
7. Amendment of Part 12 of Schedule 1 to the
Victorian Civil and Administrative Tribunal Act
1998
Victorian Legislation and Parliamentary Documents
In clauses 41, 42(1), 43 and 44(1) of Schedule 1 to
5 the Victorian Civil and Administrative
Tribunal Act 1998 for "section 118" (wherever
occurring) substitute "Division 6 of Part XIA".
See:
8. Amendment of Guardianship and Administration Act No.
Act 1986 58/1986.
Reprint No. 6
10 Section 86(2) of the Guardianship and as at
1 January
Administration Act 1986 is repealed. 2003
LawToday:
www.dms.
dpc.vic.
gov.au
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Instruments (Enduring Powers of Attorney) Act 2003
Endnotes
Act No.
ENDNOTES
Victorian Legislation and Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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551078B.I1-29/8/2003 BILL LA CIRCULATION 29/8/2003
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