POWERS OF ATTORNEY ACT 2014 (NO. 57 OF 2014)

Table of Provisions

PART 1--PRELIMINARY

• 1 Purposes  
• 2 Commencement  
• 3 Definitions  
• 4 Meaning of decision making capacity  
• 5 Assessing decision making capacity  

PART 2--NON-ENDURING POWERS OF ATTORNEY

Division 1--Definitions

• 6 Definitions  

Division 2--Scope and making of general non-enduring powers of attorney

• 7 General non-enduring power of attorney  
• 8 Appointment of more than one attorney  
• 9 Appointment of alternative attorneys  
• 10 When attorney's power is exercisable  

Division 3--Execution of non-enduring power of attorney and execution of other documents under non-enduring power of attorney

• 11 How should a non-enduring power of attorney be executed?  
• 12 Power of an attorney to execute instruments  

Division 4--Protection from liability

• 13 Interpretation  
• 14 Protection for an attorney who does not know of revocation or invalidity  
• 15 Protection for a third person who does not know of revocation or invalidity when dealing with attorney  

Division 5--Proof of non-enduring power of attorney

• 16 Proof of non-enduring power of attorney  

Division 6--Powers of attorney for security

• 17 Definition  
• 18 Operation of powers of attorney for security  
• 19 Revocation of powers of attorney for security  
• 20 Protection for a person who does not know of revocation of a power of attorney for security  

PART 3--ENDURING POWERS OF ATTORNEY--SCOPE, MAKING AND RELATED ISSUES

Division 1--Principles

• 21 Principles to be applied by persons acting under this Act or an enduring power of attorney  

Division 2--Scope of power

• 22 Enduring power of attorney  
• 23 Who may make an enduring power of attorney?  
• 24 Conditions and instructions in an enduring power of attorney  
• 25 Attorney not able to delegate power  
• 26 Matters for which power cannot be given under an enduring power of attorney  
• 27 Power of an attorney to execute instruments  

Division 3--Appointment of attorney

• 28 Who is eligible to be appointed as an attorney?  
• 29 Attorney may be occupant of position  
• 30 Appointment of more than one attorney  
• 31 Appointment of alternative attorneys  

Division 4--Making the power

• 32 Form of enduring power of attorney  
• 33 How should an enduring power of attorney be executed?  
• 34 Who is eligible to sign an enduring power of attorney at the direction of the principal?  
• 35 Who can witness the signing of an instrument creating an enduring power of attorney?  
• 36 Certification of witness to signing  
• 37 Acceptance by attorney  
• 38 Acceptance by alternative attorney  

PART 4--ENDURING POWERS OF ATTORNEY--COMMENCEMENT

• 39 When attorney's power is exercisable  
• 40 Attorney to notify if acting because the principal does not have decision making capacity  
• 41 Regaining decision making capacity does not prevent exercise of power by attorney  
• 42 Principal may continue to exercise power  

PART 5--ENDURING POWERS OF ATTORNEY--ENDING

Division 1--Provision in enduring power of attorney as to revocation

• 43 Terms of enduring power of attorney as to revocation  

Division 2--Revocation by principal

• 44 Revocation by principal  
• 45 Form of revocation  
• 46 How should an instrument of revocation be executed?  
• 47 Who is eligible to sign the instrument of revocation at the direction of the principal?  
• 48 Who can witness the signing of the instrument of revocation?  
• 49 Certification of witness to signing of instrument of revocation  
• 50 Notification of revocation  

Division 3--Other revocation

• 51 Death of principal  
• 52 Death of attorney  
• 53 Attorney does not have decision making capacity  
• 54 Revocation of appointment and notification of revocation, winding up etc.  
• 55 Later inconsistent enduring power of attorney  

Division 4--Resignation of attorney or alternative attorney when principal has decision making capacity

• 56 Resignation when principal has decision making capacity  
• 57 Form of resignation  
• 58 Notification of resignation  

Division 5--Resignation of attorney or alternative attorney when principal does not have decision making capacity

• 59 Resignation when principal does not have decision making capacity  
• 60 Form of resignation  
• 61 Notification of resignation  

Division 6--Effect of attorney's power ending where more than one attorney

• 62 Ending of attorney's power where more than one attorney  

PART 6--ENDURING POWERS OF ATTORNEY--OPERATION

Division 1--Duties of attorney

• 63 Duties of attorney  
• 64 Conflict transactions  
• 65 Permitted conflict transactions  
• 66 Keeping records  
• 67 Gifts  
• 68 Maintenance of principal's dependants  
• 69 Separation of attorney's and principal's property  
• 70 Remuneration of attorney  

Division 2--Decision making between more than one attorney

• 71 Disagreement between attorneys  
• 72 Attorney for financial matters to implement decision  

Division 3--Protection and relief from liability

• 73 Interpretation  
• 74 Relief from personal liability  
• 75 Protection for attorney, third person who does not know of invalidity or revocation or breach of condition  
• 76 Protection if acting on advice, direction or order of Court or VCAT  

Division 4--Compensation

• 77 Compensation for acts of attorney  
• 78 Who can apply for an order for compensation?  
• 79 Time limit for application for order for compensation  
• 80 VCAT may refer matter to Supreme Court  

Division 5--General matters

• 81 Enduring power of attorney is a deed  
• 82 Proof of enduring power of attorney  
• 83 Effect of administration order or guardianship order on enduring power of attorney  

PART 7--SUPPORTIVE ATTORNEY APPOINTMENTS

Division 1--Definitions

• 84 Definitions  

Division 2--Power to make appointment and nature of appointment

• 85 Power to make and scope of appointment  
• 86 Who may make a supportive attorney appointment?  
• 87 Information power  
• 88 Communication power  
• 89 Powers as to giving effect to decisions  
• 90 Duties and obligations of supportive attorney  

Division 3--Appointment of supportive attorneys

• 91 Who is eligible to be appointed as a supportive attorney?  
• 92 Appointment of more than one supportive attorney  
• 93 Appointment of alternative supportive attorneys  

Division 4--Making an appointment

• 94 Form of appointment  
• 95 How should an appointment be executed?  
• 96 Who is eligible to sign an appointment form at the direction of the principal?  
• 97 Who can witness the signing of an appointment form?  
• 98 Certification of witness to signing of appointment form  
• 99 Acceptance by supportive attorney  
• 100 Acceptance by alternative supportive attorney  

Division 5--Commencement and ending of supportive attorney appointment

• 101 When does appointment commence?  
• 102 Effect on appointment if principal does not have decision making capacity  
• 103 Revocation of appointment by principal  
• 104 Form of revocation  
• 105 How should a form of revocation be executed?  
• 106 Who is eligible to sign the form of revocation at the direction of the principal?  
• 107 Who can witness the signing of the form of revocation?  
• 108 Notification of revocation by principal  
• 109 Other revocation of supportive attorney appointment  
• 110 Notification of revocation by operation of section 109(4)  
• 111 Resignation  
• 112 Form of resignation  
• 113 Notification of resignation  

Division 6--Protection and relief from liability

• 114 Protection for supportive attorney or other person who does not know appointment does not have effect  

PART 8--VCAT JURISDICTION

Division 1--Interpretation

• 115 Interpretation  

Division 2--VCAT hearing at first instance

• 116 Matters about which VCAT may make an order  
• 117 Considerations for failure to comply with execution requirements  
• 118 Considerations for invalidity of enduring power of attorney  
• 119 Effect of finding of invalidity on enduring power of attorney  
• 120 Nature of VCAT orders  
• 121 Advisory opinions  

Division 3--Application and procedure, VCAT hearing at first instance

• 122 Who can apply for an order?  
• 123 Who is entitled to notice?  
• 124 Who are parties to the proceeding?  

Division 4--VCAT rehearing

• 125 Requirement to rehear  
• 126 Matter that cannot be subject of a rehearing  
• 127 Powers of VCAT on rehearing  
• 128 Effect of, stay of first instance order pending rehearing  
• 129 Nature of rehearing  

Division 5--Application and procedure, VCAT rehearing

• 130 Who can apply for a rehearing?  
• 131 Who is entitled to notice of rehearing?  
• 132 Who are parties to the proceeding for the rehearing?  
• 133 Time limit for making application  

Division 6--Effect on VCAT Act

• 134 Effect on VCAT Act  

PART 9--GENERAL

• 135 Offences as to enduring powers of attorney  
• 136 Offences of dishonestly obtaining or using supportive attorney appointment  
• 137 Criminal liability of officers of bodies corporate—failure to exercise due diligence  
• 138 Recognition of enduring powers of attorney made in other States and Territories  
• 139 Regulations  

PART 10--TRANSITIONAL AND CONSEQUENTIAL PROVISIONS, AMENDMENT OF OTHER ACTS

Division 1--Transitional provisions

• 140 Definitions  
• 141 Transitional provision—non-enduring powers of attorney  
• 142 Transitional provision—old enduring powers of attorney  
• 143 Transitional provision—old enduring powers of guardianship  

Division 2--Amendment of the Instruments Act 1958 and the Guardianship and Administration Act 1986

• 144 Amendment of the Instruments Act 1958  
• 145 Repeal of Division 5A of Part 4 of the Guardianship and Administration Act 1986  

Division 5A--of Part 4 of the Guardianship and Administration Act 1986 is repealed.

• 146 Repeal of sections 86 and 86A of the Guardianship and Administration Act 1986  
• 147 Repeal of Schedule 4 to the Guardianship and Administration Act 1986  
• 148 Amendment of the Guardianship and Administration Act 1986  

Division 3--Amendment of other Acts

• 149 Amendment of the Crimes Act 1958  
• 150 Amendment of the Criminal Procedure Act 2009  
• 151 Amendment of the Disability Act 2006  
• 152 Amendment of the Family Violence Protection Act 2008  
• 153 Amendment of the Health Records Act 2001  
• 154 Amendment of the Human Services (Complex Needs) Act 2009  
• 155 Amendment of the Information Privacy Act 2000  
• 156 Amendment of the Medical Treatment Act 1988  
• 157 Amendment of the Melbourne Market Authority Act 1977  
• 158 Amendment of the Mental Health Act 2014  
• 159 Amendment of the Personal Safety Intervention Orders Act 2010  
• 160 Amendment of the State Electricity Commission Act 1958  
• 161 Amendment of the Supported Residential Services (Private Proprietors) Act 2010  
• 162 Amendment of the Transport Accident Act 1986  
• 163 Amendment of the Trustee Act 1958  
• 164 Repeal of Part 12 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998  
• 165 New Part 15AD inserted in Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998  
• SCHEDULE
ENDNOTES