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TASMANIA
__________
POWERS OF ATTORNEY AMENDMENT BILL
2008
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 4 amended (Register of powers of attorney)
6. Sections 9 and 10 substituted
9. Formal requirements
10. Requirements for other instruments
7. Section 11 amended (Powers of attorney not to be registered
except in accordance with this Act)
8. Section 12 amended (Lodgment of powers of attorney, &c.)
9. Section 18 amended (Form of power of attorney)
10. Section 26 amended (Appointment of attorney by class)
11. Section 30 amended (Creation and effect of enduring powers of
attorney)
12. Section 32 amended (Duties of attorney under enduring power of
attorney)
13. Section 32A inserted
32A. Substitution of The Public Trustee as attorney
14. Section 33 amended (Power of Board to make orders in respect
of enduring power of attorney)
[Bill 4]-VI
15. Section 55A substituted
55A. Prescribed fees
16. Schedule 1 substituted
Schedule 1 - Forms
2
POWERS OF ATTORNEY AMENDMENT BILL
2008
(Brought in by the Minister for Primary Industries and Water,
the Honourable David Edward Llewellyn)
A BILL FOR
An Act to amend the Powers of Attorney Act 2000
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Powers of Attorney
Amendment Act 2008.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Principal Act
In this Act, the Powers of Attorney Act 2000* is
referred to as the Principal Act.
*No. 68 of 2000
[Bill 4] 3
Powers of Attorney Amendment Act 2008
Act No. of
s. 4
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "enduring power of
attorney":
"instrument" includes registration
application;
(b) by omitting the definition of "person
acting judicially";
(c) by inserting the following definition after
the definition of "register":
"registration application" means a
registration application in
accordance with form 5;
5. Section 4 amended (Register of powers of attorney)
Section 4 of the Principal Act is amended as
follows:
(a) by inserting in subsection (2) "copies of"
after "consists of";
(b) by omitting from subsection (2) "or any
other";
(c) by inserting in subsection (4) "a copy of"
after "register";
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Powers of Attorney Amendment Act 2008
Act No. of
s. 6
(d) by inserting the following subsection
after subsection (4):
(5) For the purposes of this section, a
copy of a power of attorney,
instrument varying or revoking a
power of attorney or any other
instrument relating to powers of
attorney is to be made by a
process approved by the
Recorder.
6. Sections 9 and 10 substituted
Sections 9 and 10 of the Principal Act are
repealed and the following sections are
substituted:
9. Formal requirements
(1) A power of attorney made or created
under section 18 or 30 must -
(a) not have more than one donor;
and
(b) be signed by the donor with that
signature attested by the signature
of -
(i) in the case of an enduring
power of attorney, two
witnesses neither of
whom is a party to it and
each of whom has
witnessed it in the
5
Powers of Attorney Amendment Act 2008
Act No. of
s. 6
presence of the donor and
each other; or
(ii) in the case of any other
power of attorney, a
witness who is not a party
to it and who witnesses it
in the presence of the
donor; and
(c) comply with this Act; and
(d) be legible; and
(e) be capable of producing a legible
copy by a process approved by
the Recorder; and
(f) contain any matter that is
intended to be in addition to, or to
be inserted in and form part of, a
power of attorney in a page of
that power of attorney or in the
form of an annexure; and
(g) be on A4-size paper; and
(h) if it consists of more than one
page, have each page
consecutively numbered and be
stapled or pinned in the top left
hand corner; and
(i) be accompanied by a registration
application; and
6
Powers of Attorney Amendment Act 2008
Act No. of
s. 6
(j) include or be accompanied by
any information or document
required by the Recorder.
(2) An annexure to a power of attorney
must -
(a) be in the same size and form as
the power of attorney; and
(b) be referred to in the power of
attorney; and
(c) contain identification that it is the
annexure to the power of
attorney; and
(d) subject to subsection (3), be
signed by the parties to the power
of attorney or, where the party is
a body corporate, by the persons
who have attested the affixing of
the seal of that body corporate to
the power of attorney; and
(e) comply with this Act.
(3) If one of the parties to a power of
attorney is a body corporate that is not
required by law to affix its seal to the
power of attorney, an annexure to the
power of attorney is to be signed by any
person who is authorised by law to
execute the power of attorney.
(4) An alteration to a power of attorney or
annexure -
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Powers of Attorney Amendment Act 2008
Act No. of
s. 6
(a) is to be made by striking through
the word or words intended to be
altered so as not to render
illegible the original word or
words; and
(b) is to be initialled by the donor
and the attorney.
(5) The initialling by the donor of an
alteration to a power of attorney or
annexure is to be witnessed -
(a) in the case of an enduring power
of attorney or annexure to such a
power of attorney, by two
witnesses neither of whom is a
party to it and each of whom has
witnessed it in the presence of the
donor and each other; or
(b) in the case of any other power of
attorney or annexure to such a
power of attorney, by a witness
who is not a party to it and who
witnesses it in the presence of the
donor.
(6) A witness to the initialling of an
alteration to a power of attorney or
annexure may be the same person as, or a
different person to, the person who
witnessed the power of attorney or
annexure.
8
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Act No. of
s. 6
10. Requirements for other instruments
(1) Subject to this section, section 9 applies
as far as relevant -
(a) to an instrument that refers to a
power of attorney, other than an
instrument referred to in
section 32A; and
(b) to an annexure to such an
instrument.
(2) An instrument that refers to a power of
attorney, including an instrument referred
to in section 32A, must clearly identify
the power of attorney by reference to -
(a) the name of the donor; and
(b) the name of the attorney; and
(c) the date on which it was
executed; and
(d) the distinctive number or other
means of identification given
under section 12(2).
(3) Where an instrument that refers to a
power of attorney is required to be signed
by the donor, it is sufficient if it is signed
by the donor's personal representative
with a statement as to how and in what
capacity he or she has been appointed to
act.
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Powers of Attorney Amendment Act 2008
Act No. of
s. 7
7. Section 11 amended (Powers of attorney not to be
registered except in accordance with this Act)
Section 11 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) The Recorder must not register
any power of attorney or other
instrument under this Act unless
it -
(a) complies with this Act;
and
(b) is accompanied by a
registration application.
(b) by omitting subsections (3) and (4) and
substituting the following subsections:
(3) If a power of attorney or other
instrument is lodged with the
Recorder under this Act for
registration and does not comply
with this Act, the Recorder
must -
(a) refuse to register the
power of attorney or other
instrument and return it to
the person who lodged it;
or
10
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Act No. of
s. 7
(b) return the power of
attorney or other
instrument to the person
who lodged it with a
notice notifying him or
her that the Recorder will
refuse to register the
power of attorney or other
instrument unless the
specified corrections are
made.
(4) Where corrections are to be made
as mentioned in subsection (3) -
(a) the Recorder may refuse
registration of the
corrected power of
attorney or other
instrument if the
corrections are not made
within 60 days after
notice under subsection
(3)(b) was given, or
within such further time
as the Recorder may
allow; and
(b) the corrections are to be
initialled by the donor and
attorney.
(4A) The initialling of corrections to a
power of attorney or other
instrument by the donor under
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Act No. of
s. 7
subsection (4)(b) is to be
witnessed -
(a) in the case of an enduring
power of attorney, by two
witnesses neither of
whom is a party to it and
each of whom has
witnessed it in the
presence of the donor and
each other; or
(b) in the case of any other
power of attorney, a
witness who is not a party
to it and who witnesses it
in the presence of the
donor.
(4B) A witness to the initialling of
corrections to a power of attorney
or other instrument may be the
same person as, or a different
person to, the person who
witnessed the power of attorney
or other instrument.
(c) by omitting from subsection (5) "on" and
substituting "in relation to";
(d) by inserting the following subsection
after subsection (5):
(5A) Despite any provision of this Act
to the contrary, the Recorder may
accept for registration a power of
attorney, annexure or alteration to
12
Powers of Attorney Amendment Act 2008
Act No. of
s. 8
a power of attorney that does not
comply with this Act if the
Recorder considers it appropriate
to do so in the particular
circumstances.
8. Section 12 amended (Lodgment of powers of
attorney, &c.)
Section 12 of the Principal Act is amended as
follows:
(a) by omitting subsection (2) and
substituting the following subsection:
(2) On lodgment of a power of
attorney or other instrument, the
Recorder must -
(a) identify the power of
attorney or other
instrument by endorsing
on it a distinctive number,
a distinctive letter and
number or any other
identifying procedure; and
(b) take a copy of the
endorsed power of
attorney or other
instrument; and
(c) return the endorsed power
of attorney or other
13
Powers of Attorney Amendment Act 2008
Act No. of
s. 9
instrument to the person
who lodged it.
(b) by inserting in subsection (3)(a) "copy of
the" after "on the".
9. Section 18 amended (Form of power of attorney)
Section 18(1) of the Principal Act is amended by
omitting "attorney" first occurring and
substituting "attorney, other than an enduring
power of attorney,".
10. Section 26 amended (Appointment of attorney by
class)
Section 26 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsections:
(2) If a person does any act, or executes or
signs a document, and purports to do so
as a member of a class of persons
appointed as attorneys under a power of
attorney -
(a) any other person dealing with the
purported attorney may assume
the purported attorney has
sufficient authority to do the act,
or sign or execute the document,
as such an attorney; and
14
Powers of Attorney Amendment Act 2008
Act No. of
s. 11
(b) the doing of the act, or the
signature on or execution of the
document, is taken to be evidence
that the purported attorney has
sufficient authority to do the act,
or sign or execute the document,
as such an attorney.
(3) This section does not apply to an
enduring power of attorney.
11. Section 30 amended (Creation and effect of
enduring powers of attorney)
Section 30 of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) from
subsection (2);
(b) by inserting the following subsection
after subsection (4):
(5) If before the commencement of
this subsection an attesting
witness was not present, as
required by Form 3 or Form 4 as
in force before that
commencement, when an
attorney signed the form of
acceptance on or relating to an
enduring power of attorney
(whether or not the witness
attested that he or she witnessed
the attorney's signature) -
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Powers of Attorney Amendment Act 2008
Act No. of
s. 12
(a) the enduring power of
attorney is not and has
never been, by that reason
only, invalid; and
(b) any act done, or document
signed or executed, by the
attorney is not and has
never been, by that reason
only, invalid.
12. Section 32 amended (Duties of attorney under
enduring power of attorney)
Section 32 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2) "Subject
to subsection (3), an" and substituting
"An";
(b) by omitting subsection (3).
13. Section 32A inserted
After section 32 of the Principal Act, the
following section is inserted in Part 4:
32A. Substitution of The Public Trustee as
attorney
(1) If -
(a) a power of attorney appoints only
one attorney, that attorney may
16
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Act No. of
s. 14
appoint The Public Trustee to act
as attorney in his or her place; or
(b) a power of attorney appoints
more than one attorney, those
attorneys jointly may appoint The
Public Trustee to act as sole
attorney in their places.
(2) An appointment under subsection (1) is
to be -
(a) in accordance with form 6; and
(b) signed by the attorney or all
attorneys; and
(c) accepted by The Public Trustee in
accordance with that form.
(3) An appointment is of no effect until
registered by the Recorder.
(4) If The Public Trustee is appointed to act
as attorney under this section, a reference
in this Act to an attorney is taken to be a
reference to The Public Trustee.
14. Section 33 amended (Power of Board to make
orders in respect of enduring power of attorney)
Section 33 of the Principal Act is amended by
inserting after subsection (6) the following
subsections:
17
Powers of Attorney Amendment Act 2008
Act No. of
s. 15
(6A) If the Board adjourns a hearing held
under this section, the Board may make
any interim order or give any directions it
considers appropriate, including making
an order appointing The Public Trustee
as administrator of the estate of the
donor.
(6B) Subsection (6A) does not authorise the
Board to suspend the operation of an
enduring power of attorney, or extend
such a suspension, which may only be
done by the Board under subsection (4)
or (6).
(6C) An interim order has effect for the period
of the adjournment and any subsequent
adjournment or as specified in the
interim order.
(6D) The Board may vary or revoke an interim
order or make a further or subsequent
interim order.
15. Section 55A substituted
Section 55A of the Principal Act is repealed and
the following section is substituted:
55A. Prescribed fees
(1) The fees prescribed in Schedule 2 are
payable under this Act for the matters to
which they respectively relate.
(2) A prescribed fee -
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Powers of Attorney Amendment Act 2008
Act No. of
s. 16
(a) is to be paid to the Recorder or an
agent appointed by the Recorder
under section 169E of the Land
Titles Act 1980; and
(b) may be paid in any manner
approved by the Recorder.
(3) A person, if so authorised by the
Recorder or an agent appointed by the
Recorder under section 169E of the Land
Titles Act 1980, may pay a prescribed fee
after the transaction to which it relates.
16. Schedule 1 substituted
Schedule 1 to the Principal Act is repealed and
the following Schedule is substituted:
19
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Act No. of
s. 16
SCHEDULE 1 - FORMS
Section 3(2)
FORM 1
Section 18(1)(b)
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FORM 2
Section 18(1)(c)
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FORM 3
Section 30(1)(b) and (2)(c)
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FORM 4
Section 30(1)(c) and (2)(c)
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FORM 5
Section 3(1)
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FORM 6
Section 32A
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32 Government Printer, Tasmania