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Powers of Attorney Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The Powers of Attorney Bill 2014 consolidates the current legislative
provisions for non-enduring powers of attorney and enduring powers of
attorney under the Instruments Act 1958; and enduring powers of
guardianship under the Guardianship and Administration Act 1986.
The aims of the Bill are to simplify and consolidate certain aspects of
Victoria's powers of attorney laws, to create the role of a supportive attorney
and to improve the protections for vulnerable people. This legislation will
provide increased safeguards for people making enduring powers of attorney
and set out clear duties for an attorney acting under an enduring power of
attorney.
Background
The Bill implements the majority of recommendations from the Victorian
Parliamentary Law Reform Committee (VPLRC) Inquiry into Powers of
Attorney, which was tabled in Parliament in August 2010. The Inquiry
included 90 recommendations to streamline and simplify the current
legislative provisions for powers of attorney and provided guidance on
assessing when a person has capacity to make a decision. The VPLRC noted
that in the context of an ageing population and with increasing rates of
dementia, it was important that more people were encouraged and supported
to make powers of attorney to plan for their future.
The Government Response to the VPLRC report was tabled in Parliament in
February 2011 and accepted the majority of recommendations contained in
the VPLRC report.
The Bill also reflects a number of recommendations from the Victorian Law
Reform Commission (VLRC) in its Guardianship: Final Report, which was
tabled in Parliament in April 2012. In particular, the Bill allows for a new
kind of appointment of a person to be known as a supportive attorney to
571350 1 BILL LA INTRODUCTION 25/6/2014
support a person with impaired decision making ability to make and give
effect to his or her own decisions. This important new legal mechanism,
which is a legislative first in Australia, recognises that some people with
impaired decision making ability do not need a guardian or administrator but
are able to make their own decisions with support. Often that support comes
from family members and trusted carers, and the ability to appoint a
supportive attorney will acknowledge these relationships of support while
ensuring that the person retains their right to make decisions.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Subclause (1)(a) states that the Act consolidates and provides
for certain aspects of the law relating to powers of attorney,
including--
· principles to be applied by persons acting under
enduring powers of attorney under the provisions of this
Act relating to enduring powers of attorney; and
· powers and duties of attorneys under enduring powers
of attorney; and
· the protection of persons whose affairs are being dealt
with under enduring powers of attorney.
Subclause (1)(b) states that the Bill provides for the meaning of
capacity of persons to make decisions for matters to which
enduring powers of attorney and supportive attorney
appointments relate.
Subclause (1)(c) states that the Bill provides for appointment of
a supportive attorney as one who supports the person making
the appointment to make and give effect to the person's own
decisions.
Subclause (1)(d) states that the Bill repeals Part XI and XIA of
the Instruments Act 1958 and Division 5A of Part 4 of the
Guardianship and Administration Act 1986;
Subclause (1)(e) states that the Bill makes related amendments
to the Instruments Act 1958, the Guardianship and
Administration Act 1986 and other Acts.
Subclause (1)(f) states that the Bill provides for related matters.
2
Clause 2 provides that the Bill comes into operation on a day or days to
be proclaimed, however if a provision of this Act does not come
into operation before 1 September 2015, then it comes into
operation on 1 September 2015.
Clause 3 sets out definitions that apply throughout the Bill.
Key definitions are set out below.
The definition of an enduring power of attorney means a power
of attorney to which clause 22 of the Bill applies. Clause 22(1)
allows a person by an enduring power of attorney to authorise
an eligible attorney to do anything on behalf of the person that a
person can lawfully do by an attorney. Under clause 22(2), an
enduring power of attorney may be made in respect of financial
matters or personal matters, or both. Financial matter and
personal matter are defined in clause 3.
Financial matter relates to a principal under an enduring power
of attorney or supportive attorney appointment. It means any
matter relating to the principal's financial or property affairs.
A financial matter includes any legal matter that relates to the
financial or property affairs of the principal. The definition
provides a non-exhaustive list of examples of financial matters.
For instance, making investments for the principal is an
example of a financial matter.
Legal matter means the use of legal services for the principal's
benefit; or bringing or defending a legal proceeding or hearing
in a court or tribunal or other body on behalf of the principal,
including settling a claim before or after a legal proceeding or
hearing starts. Legal matter relates to a principal under an
enduring power of attorney, or a supportive attorney
appointment. The term legal matter is used in reference to
both financial and personal matters as defined in clause 3.
The definition of legal matter provides a non-exhaustive list of
examples of legal matters. For instance, the use of legal
services to make a transaction is an example of a legal matter.
The term non-enduring powers of attorney means a power
of attorney that is not an enduring power of attorney.
This definition encompasses general non-enduring powers of
attorney. A general non-enduring power of attorney is created
under clause 7 of the Bill. Non-enduring powers of attorney are
dealt with in Part 2 of the Bill.
A personal matter relates to a principal under an enduring
power of attorney or supportive attorney appointment. It means
any matter relating to the principal's personal or lifestyle affairs,
including any legal matter that relates to the principal's personal
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or lifestyle affairs. The definition provides a non-exhaustive list
of examples of personal matters. For instance, where and with
whom the principal lives is an example of a personal matter.
The term principal has two uses in the Bill--
· for a power of attorney it means a person who makes a
power of attorney;
· for a supportive attorney appointment it means the
person who makes the supportive attorney appointment.
A supportive attorney means a person appointed under a
supportive attorney appointment and supportive attorney
appointment means an appointment under clause 85. Clause 85
provides that a person may appoint an eligible person to support
them in making decisions, including by exercising powers set
out in the appointment relating to accessing, collecting or
obtaining information, communicating information about the
principal or giving effect to supported decisions under the Act.
These powers are defined in clauses 87, 88 and 89.
Subclause (2) expands the definition of domestic partner.
Subclause (3) makes clear that a reference in the definition of
relative to a person's sibling includes a reference to an
individual who was adopted by one or both or the person's
parents.
Subclause (4) sets out the meaning of the reference to signing at
the direction the principal under this Act. This is relevant for an
appointment under an enduring power of attorney, revocation of
an enduring power of attorney, a supportive attorney
appointment and a revocation of a supportive attorney
appointment.
Clause 4 outlines the meaning of when a person has decision making
capacity for the purpose of the Bill, except for Part 2 and
provides guidance on determining whether a person has
decision making capacity.
Subclause (1) provides that a person capacity to make a
decision as to a matter (decision making capacity) if they are
able to--
· understand the information relevant to the decision and
the effect of the decision. Under subclause (3), a person
is taken to understand the information relevant to the
decision if they understand an explanation given in a
way that is appropriate to their circumstances, whether
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by using modified language, visual aids or any other
means; and
· retain that information to the extent necessary to make
the decision; and
· use or weigh that information as part of the process of
making the decision; and
· communicate the decision, and the person's views and
needs as to the decision, in some way, including by
speech, gestures or other means.
Subclause (2) provides that a person is presumed to have
decision making capacity unless there is evidence to the
contrary.
Subclause (4) lists a number of factors to be considered in
determining whether or not a person has decision making
capacity, as follows--
· a person may have decision making capacity for some
matters and not others;
· if a person does not have decision making capacity for a
matter, it may be temporary and not permanent;
· it should not be assumed that a person does not have
decision making capacity for a matter on the basis of
their appearance;
· it should not be assumed that a person does not have
decision making capacity because the person makes a
decision that is, in the opinion of others, unwise. This is
subject to subclause (5) which provides that the fact that
a person has made or proposes to make a decision that
has a high risk of being seriously injurious to the
person's health or wellbeing may, in conjunction with
other factors, be evidence that the person is unable to
understand, use or weigh information relevant to the
decision or the effect of the decision;
· a person has decision making capacity for a matter if it
is possible for the person to make a decision with
practicable and appropriate support.
A non-exhaustive list of examples of practicable and
appropriate support is set out at the foot of subclause (4)(e),
including--
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· using information or formats tailored to the particular
needs of the person; or
· communicating or assisting a person to communicate
his or her decision; or
· giving a person additional time and discussing the
matter with the person; or
· using technology that alleviates the effects of the
person's disability.
Clause 5 provides that when assessing whether a person has decision
making capacity, the person making the assessment must take
reasonable steps to conduct the assessment at a time and in an
environment in which the person's decision making capacity can
be assessed most accurately.
PART 2--NON-ENDURING POWERS OF ATTORNEY
Division 1--Definitions
Clause 6 sets out definitions used in Part 2 of the Bill.
The terms statutory owner and tenant for life both have
the same meaning as in the Settled Land Act 1958.
A trustee is defined to include both a tenant for life and a
statutory owner. This definition replaces the definition in
section 107(3) of the Instruments Act 1958, but has similar
effect.
Division 2--Scope and making of general non-enduring power
of attorney
Clause 7 outlines the scope of an attorney's power under a general
non-enduring power of attorney, that is in or to the effect of the
form in the Schedule.
Subclause (1) provides that a general non-enduring power of
attorney gives the attorney under the power authority to do
anything on behalf of the principal that a principal can lawfully
do by an attorney.
Subclause (2) provides that a general non-enduring power of
attorney does not empower the attorney to delegate a power
under the power of attorney, unless delegation is specified in the
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power of attorney. It also provides that the power of a principal
as trustee cannot be delegated to an attorney.
Clause 8 provides that a principal may appoint more than one person as
attorneys under a general non-enduring power of attorney.
Multiple attorneys may be appointed to act jointly, or jointly
and severally. If a principal does not specify how the attorneys
are appointed, then they are taken to be appointed to act jointly.
Clause 9 provides that a principal may appoint one or more persons as
alternative attorneys under a general non-enduring power of
attorney. The principal may specify in the power of attorney
the circumstances in which any alternative attorney may act
under the power.
Clause 10 specifies when an attorney's power under a general non-
enduring power of attorney is exercisable. A principal may
specify a time, circumstance or occasion on which the power is
exercisable. If the principal does not specify when the general
non-enduring power of attorney is exercisable, then the powers
are exercisable once the power of attorney is made.
Division 3--Execution of non-enduring powers of attorney
and execution of other documents under non-enduring power
of attorney
Clause 11 sets out execution requirements for a non-enduring power of
attorney. A non-enduring power of attorney may be executed
by the principal signing or another person signing, in the
presence of and at the direction of the principal. If a non-
enduring power of attorney is executed by another person in the
presence of and at the direction of the principal, then it must be
witnessed and signed by two people.
Clause 12 sets out the powers of an attorney to execute instruments when
acting under a non-enduring power of attorney.
An attorney is able to execute any instrument with the attorney's
own signature or with the attorney's own seal (where sealing is
required), and do any other thing in the attorney's own name.
An attorney must execute an instrument in a way that shows it
is executed in their role as attorney for the principal.
An instrument executed or thing done by the attorney under the
power of attorney will be effective as if it had been done by the
principal.
7
Section 74 (3) and (4) of the Property Law Act 1958 provides
for execution of powers of attorney on behalf of corporations.
Subclause (4) provides that an instrument to which section
74(3) or (4) applies may be executed either as provided for in
that section or in this clause.
Division 4--Protection from liability
Clause 13 provides an explanation of what constitutes knowledge that a
non-enduring power of attorney is invalid or has been revoked
for the purposes of Part 2.
This knowledge includes knowledge of the happening of an
event that invalidates or revokes the non-enduring power of
attorney or a power under the non-enduring power of attorney;
or having reason to believe that the non-enduring power of
attorney or a power under the non-enduring power of attorney
is invalid or has been revoked.
Clause 14 provides protection from liability for an attorney who acts in
good faith under a non-enduring power of attorney as against
the principal or anyone else, where the attorney purports to
exercise power under the power of attorney and does not know
that the power being exercised, or the power of attorney is
invalid or has been revoked.
This clause replaces section 110(1) of the Instruments Act
1958, but differs from section 110(1) in that it makes minor
amendments for consistency with similar provisions for
enduring powers of attorney.
Clause 15 provides that a person is entitled to rely on a non-enduring
power of attorney if the person acts in good faith and acts
without knowledge of the invalidity or revocation of the
non-enduring power of attorney. The person is entitled to rely
on the power despite the invalidity or revocation as against the
principal and any other person.
Division 5--Proof of non-enduring power of attorney
Clause 16 sets out the requirements for proving a non-enduring power of
attorney. The clause provides that a non-enduring power of
attorney may be proved by a copy of the instrument certified as
outlined in the clause. A copy of the non-enduring power of
attorney instrument must be certified in the manner specified,
and must be certified by one of the persons listed in
subclause (4).
8
A non-enduring power of attorney may also be proved by a
copy of the certified copy of a non-enduring power of attorney
instrument, if the copy is certified as provided for in the clause.
Subclause (4) provides that certification must be by an
Australian legal practitioner; financial services licensee; a
justice of the peace; a public notary, any other person authorised
by law to administer an oath or a person of a prescribed class.
Australian legal practitioner is defined in the Interpretation of
Legislation Act 1984.
The definition of financial services licensee is contained in
clause 3 of the Bill and is defined to have the same meaning as
in section 761A of the Corporations Act.
This clause also includes new definitions of justice of the peace
and public notary. The term justice of the peace is defined for
the purposes of this clause as a person appointed as a justice of
the peace under Part 6 of the Magistrates' Court Act 1989.
The term public notary has the same meaning as in the Public
Notaries Act 2001.
Division 6--Powers of attorney for security
Clause 17 outlines the definition of a power of attorney for security for
the purposes of Division 6. A power of attorney for security is
a type of non-enduring power of attorney. A power of attorney
for security is a non-enduring power of attorney states that it
that is irrevocable and that is given by the principal to secure a
proprietary interest of the attorney or the performance of an
obligation owed to the attorney.
Clause 18 sets out the operation of a power of attorney for security.
Subclause (1) provides that a power of attorney for security that
is given to secure a proprietary interest may be given to the
person entitled to the proprietary interest and to any person
deriving title to the proprietary interest under that person.
Subclause (2) provides that a person deriving title to a
proprietary interest under another person is an attorney under
the power for all purposes of the power.
Subclause (3) provides that subclauses (1) and (2) do not affect
any right to appoint a substitute attorney given by the power of
attorney.
9
Clause 19 provides for revocation of a power of attorney for security.
The clause provides that where the attorney under the power of
attorney for security has the proprietary interest secured by the
power or the obligation owed to the attorney is undischarged,
then a power of attorney for security--
· is not capable of being revoked by the principal without
the consent of the attorney;
· is not revoked by the death or incapacity of the
principal;
· is not revoked by the principal becoming insolvent
under administration or if the principal is a body
corporate, by the winding up or dissolution of the
principal.
Clause 20 outlines the circumstances in which a person is protected where
the person does not know of the revocation or a power of
attorney for security.
Under subclause (1) a person acting in reliance on the purported
exercise of power by an attorney under a power of attorney for
security is entitled to assume that the power cannot be revoked
unless the principal does so with the consent of the attorney.
A person acting in reliance on the purported exercise of power
by an attorney under a power of attorney for security must not
be treated as knowing that the power has been revoked unless
the person knows the principal revoked the power with consent
of the attorney.
Subclause (2) provides that subclause (1) does not apply if the
person knows the power of attorney was not given to secure a
proprietary interest or the performance of an obligation.
PART 3--ENDURING POWERS OF ATTORNEY--
SCOPE, MAKING AND RELATED ISSUES
Division 1--Principles
Clause 21 sets out principles that must be applied by any person exercising
a power, carrying out a function or performing a duty under the
Bill for a principal under an enduring power of attorney who
does not have decision making capacity in relation to one or
more matters.
10
Subclause (1) provides that a person exercising a power,
carrying out a function or performing a duty under the Bill for a
principal under an enduring power of attorney who does not
have decision making capacity in relation to one or more
matters--
· must do so in a way that is as least restrictive of the
principal's ability to decide and act as is possible in the
circumstances; and
· in doing so the person must ensure that the principal is
given practicable and appropriate support to enable the
principal to participate in decisions affecting the
principal as much as possible in the circumstances.
Subclause (2) outlines principles to guide an attorney making a
decision under an enduring power of attorney about a matter on
behalf of a principal who does not have decision making
capacity, in relation to that matter. In these circumstances the
attorney must--
· give all practicable and appropriate effect to the
principal's wishes; and
· take any steps that are reasonably available to encourage
the principal to participate in decision making, even
though the principal does not have decision making
capacity; and
· act in a way that promotes the personal and social
wellbeing of the principal, including by recognising the
inherent dignity of the principal; and having regard to
the principal's existing supportive relationships,
religion, values and cultural and linguistic environment;
and respecting the confidentiality of confidential
information relating to the principal.
Division 2--Scope of power
Clause 22 sets out the scope of an enduring power of attorney. Subclause
(1) provides that by enduring power of attorney a person may
authorise an eligible attorney to do anything on behalf of the
person that a person can lawfully do by attorney.
Subclause (2) clarifies that a person may make an enduring
power of attorney for personal matters, or financial matters, or
both. Financial matter and personal matter are defined in
clause 3.
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Subclause (3) clarifies that despite any rule of law to the
contrary, an enduring power of attorney is not revoked by the
principal, after making the power, becoming a person who does
not have decision making capacity for any matters to which the
power of attorney applies.
The term eligible attorney for the purposes of clause 22 means a
person who is eligible to be appointed as an attorney under the
power of attorney under Division 3.
Clause 23 sets out who may make an enduring power of attorney.
Subclause (1) provides that a person is not able to make an
enduring power of attorney unless the person is of or over 18
years of age, and the person has decision-making capacity in
relation to making the enduring power of attorney.
Subclause (2) provides that for the purpose of clause 4(1)(a) of
the Bill understanding the effect of the decision to make an
enduring power of attorney includes understanding the
following matters--
· that the principal may, in the power of attorney, place
conditions on the power given to the attorney and give
instructions to the attorney about the exercise of the
power given;
· when the power of attorney commences;
· that once the power of attorney is exercisable in relation
to a matter,, the attorney has the same powers the
principal has, when the principal has decision making
capacity for that matter, to do anything for which the
power for that matter is given;
· that the principal may revoke the power of attorney at
any time when the principal has decision making
capacity in relation to making of the power of attorney;
· that the power of attorney continues even if the
principal subsequently becomes a person who does not
have decision making capacity for a matter in the power
of attorney;
· that at any time when the principal does not have
decision making capacity in relation to revoking the
power of attorney, the principal is unable to effectively
oversee the use of the power.
12
Clause 24 specifies that a person making an enduring power of attorney
may place conditions on the exercise of the power or give
instructions about the exercise of the power.
This clause replaces section 115(1)(b) of the Instruments Act
1958, but has similar effect.
Clause 25 makes clear that an enduring power of attorney does not have
the effect of empowering an attorney to delegate a power under
the enduring power of attorney.
Clause 26 sets out matters for which power cannot be given under an
enduring power of attorney. A principal is not able to authorise
an attorney to do any of the following--
· make or revoke a will for the principal; or
· make or revoke an enduring power of attorney for the
principal; or
· vote on the principal's behalf in an election for the State
or the Commonwealth or another State or a Territory of
the Commonwealth or at a local election or referendum;
or
· consent to the entering into or dissolution of a marriage
of the principal or of a sexual relationship of the
principal; or
· make or give effect to a decision about the care and
wellbeing of any child of the principal or about the
adoption of a child under 18 years of age of the
principal; or
· to enter into, or agree to enter into, a surrogacy
arrangement, within the meaning of the Assisted
Reproductive Treatment Act 2008 on behalf of the
principal; or
· consent to the making or discharge of a substitute
parentage order, within the meaning of the Status of
Children Act 1974 on the principal's behalf; or
· manage the estate of the principal on the death of the
principal; or
· consent to an unlawful act.
13
Clause 27 states that the power of an attorney to execute instruments under
an enduring power of attorney is the same as for a non-enduring
power of attorney under clause 12 of the Bill.
Division 3--Appointment of attorney
Clause 28 sets out the eligibility requirements to be appointed as an
attorney under an enduring power of attorney. In order to be
eligible to be appointed as an attorney, a person must be of or
over 18 years of age, not be insolvent under administration, and
not be a care worker, a health provider or an accommodation
provider for the principal.
If the person is to be appointed as an attorney for financial
matters for the principal, the person must not have been
convicted or found guilty of an offence involving dishonesty, or
if the person has been convicted or found guilty of an offence
involving dishonesty, they have disclosed the conviction or
finding of guilt to the principal and this disclosure has been
recorded in the enduring power of attorney.
Subclause (2) clarifies that a trustee company is eligible to be
appointed as an attorney for financial matters if the company is
not a company against which a proceeding for winding up has
commenced.
Subclause (3) clarifies that the Public Advocate is eligible to be
appointed as an attorney for personal matters.
Clause 29 provides that an attorney under an enduring power of attorney
may be appointed as being the occupant of a position, however
described, at the time the power of attorney is made or from
time to time.
Clause 30 provides that a principal may appoint more than one attorney
under an enduring power of attorney. Subclause (2) provides
that if more than one attorney is appointed under the power, the
principal may specify the matters for which each attorney may
act. Attorneys may be appointed to act as to all or any matters
jointly, severally, jointly and severally, or as majority attorneys.
If the principal does not specify how the attorneys are
appointed, they are presumed to be appointed to act jointly.
Subclause (4) specifies the different decision making processes
that apply to joint attorneys, several attorneys, joint and several
attorneys and majority attorneys.
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Clause 31 provides for the appointment of alternative attorneys.
Subclause (1) provides that a principal under an enduring power
of attorney may appoint a person as an alternative attorney for
any attorney appointed under the power of attorney.
An alternative attorney must be eligible for appointment under
clause 28 of the Bill.
Subclause (2) outlines when an alternative attorney is
authorised to act under the power. An alternative attorney may
act in circumstances outlined in the power of attorney, or where
no circumstances are specified, if the attorney for whom the
alternative attorney is appointed--
· dies; or
· does not have decision making capacity for the matters
to which the appointment applies; or
· is otherwise not willing or able to act.
The alternative attorney is also authorised to act if the
appointment of the attorney for whom the alternative attorney
is authorised to act is revoked by the operation of clause 54 of
the Bill.
Subclause (3) provides that an alternative attorney may act in
the same manner as the attorney for whom the alternative
attorney is appointed to act, unless the enduring power of
attorney provides otherwise.
Division 4--Making the power
Clause 32 states that an enduring power of attorney must be in the
prescribed form.
Clause 33 outlines how an instrument creating an enduring power of
attorney should be executed. An instrument creating an
enduring power of attorney must be executed by the principal
signing, or an eligible person signing in the presence of and at
the direction of the principal. In addition two persons must be
present and must witness the signing of the instrument and sign
and date the instrument in the presence of the principal and of
each other. The witnesses must certify in the instrument in the
manner required in clause 36.
15
Clause 34 specifies who is eligible to sign an instrument creating an
enduring power of attorney at the direction of the principal.
A person is eligible to sign at the direction of the principal if the
person is of or over 18 years of age, is not a witness to the
signing of the instrument, and is not an attorney under the
enduring power of attorney.
Subclause (2) clarifies that a person is not excluded from
signing at the principal's direction merely because the person is
an employee of the attorney under the power who signs while
acting in the ordinary course of that employment.
Clause 35 sets out who can witness the signing of an instrument creating
an enduring power of attorney.
Subclause (1) provides that the two witnesses must both be
eligible to do so under subclause (2) and at least one of the
witnesses signing must be either authorised to witness affidavits
or a medical practitioner.
Subclause (2) provides that a person is eligible to witness the
signing of the instrument if the person is of or over 18 years of
age; and is not--
· signing at the direction of the principal; and
· an attorney under the power of attorney; and
· a relative of the principal, or a relative of an attorney, or
a care worker or accommodation provider for the
principal.
Subclause (3) clarifies that a person is not excluded from
witnessing merely because the person is an employee of the
attorney under the power who signs while acting in the ordinary
course of that employment.
Clause 36 outlines the certification requirements to be undertaken by
witnesses who witness the signing of an instrument creating an
enduring power of attorney.
Subclause (1)(a) requires that each witness certifies that the
principal appeared to sign the document freely, voluntarily and
appeared to each witness to have decision making capacity in
relation to the making of the enduring power of attorney.
Subclause (1)(b) requires that each witness must state that they
are not one of the persons listed in subclause (1)(b) excluded
from witnessing, being--
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· an attorney under the power; or
· a relative of the principal or of an attorney; or
· a care worker or accommodation provider for the
principal; and
· if the witness is a person authorised to witness affidavits
or a medical practitioner then they must state the
qualification on which the witness is acting.
Subclause (2) relates to witnesses who witness another person
signing an instrument creating an enduring power of attorney at
the direction of the principal. This clause provides that each
witness must certify that--
· the principal appeared to freely and voluntarily direct
the person to sign for the principal; and
· that the person signed in the presence of the principal
and the witness; and
· that the principal at the time of signing appeared have
decision making capacity in relation to the making of
the enduring power of attorney.
The subclause provides that each witness must state that they
are not one of the persons listed in clause (2)(b) who are
excluded from witnessing including: the person signing at the
direction of the principal; an attorney under the power; a
relative of the principal or of an attorney, or a care worker or an
accommodation provider for the principal. If the witness is a
person authorised to witness affidavits or a medical practitioner
then they must state the qualification on which the witness is
acting.
Clause 37 specifies the requirements for the acceptance of the appointment
as an attorney under an enduring power of attorney.
The clause provides that for the appointment of an attorney
under an enduring power of attorney to be effective--
· the attorney must sign a statement of acceptance in the
prescribed form; and
· the acceptance must be witnessed by a person of or over
18 years of age who must sign that they have witnessed
the signing by the attorney, unless the attorney is a
trustee company; and
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· the appointment must contain a statement that the
attorney is--
· eligible to act as an attorney under an enduring
power of attorney; and
· understands the obligations of an attorney under
an enduring power of attorney under this Act and
the consequences of failure to comply with those
obligations; and
· undertakes to act in accordance with the
provisions of this Act that relate to enduring
powers of attorney.
Clause 38 specifies the requirements for the acceptance of the appointment
of alternative attorney under an enduring power of attorney.
The clause provides that for an appointment of an alternative
attorney under an enduring power of attorney to be effective--
· the alternative attorney must sign the statement of
acceptance in the prescribed form; and
· the acceptance must be witnessed by a person of or over
18 years of age who must sign that they have witnessed
the signing by the alternative attorney, unless the
alternative attorney is a trustee company.
Also the statement of acceptance must contain a statement that
the alternative attorney--
· is eligible to act as an attorney under an enduring
power of attorney;
· understands the obligations of an attorney under
an enduring power of attorney under this Act and
the consequences of failure to comply with those
obligations; and
· undertakes to act in accordance with the
provisions of this Act that relate to enduring
powers of attorney; and
· understands the circumstances in which the
alternative attorney is authorised to act under this
Act; and
18
· is prepared to act in the place of the attorney for
whom the alternative attorney is appointed, if
still eligible to act as attorney, when authorised
to do so under this Act.
PART 4--ENDURING POWERS OF ATTORNEY--
COMMENCEMENT
Clause 39 sets out when an attorney's power under an enduring power of
attorney becomes exercisable.
Subclause (1) states that a principal may specify in the enduring
power of attorney, a time, circumstance or occasion from which
the power for all matters or the power for a specified matter
under the power of attorney is exercisable. The principal may
specify that power for all matters or specified matters is
exercisable immediately on the making of the power; or when
the principal ceases to have decision making capacity for the
matters or matter; or any other time, circumstance or occasion.
Subclause (2) states that if the enduring power of attorney does
not specify when the power is exercisable, then power for all
matters under the enduring power of attorney is exercisable on
and from the making of the power of attorney.
Subclause (3) provides that despite specifications in relation to
when the power is exercisable under subclause (1), if before the
specified time, circumstance or occasion, the principal does not
have decision making capacity for the matter, an attorney who
has power for the matter may exercise that power during any
period when the principal does not have that capacity.
Subclause (4) provides that if an attorney is acting under an
enduring power of attorney because a principal does not have
decision making capacity for the matter, a person dealing with
the attorney may ask for evidence to establish that the principal
does not have decision making capacity. The note provides an
example of evidence that may be given under subclause (4).
Clause 40 provides for notification by an attorney when acting under an
enduring power of attorney because the principal does not have
decision making capacity. The clause states that before
commencing exercising the power under an enduring power of
attorney for the first time, the attorney must take reasonable
steps to notify any person who should be notified as stated in
the enduring power of attorney.
19
Subclause (2) provides that failure to notify under this clause
does not affect any exercise of power by the attorney under the
enduring power of attorney.
Subclause (3) provides that reasonable steps for the purposes of
this clause include sending the notification by post to the last
known residential address of an individual, or the last known
business address of a body corporate.
Clause 41 provides that if a principal regains capacity once the attorney
has begun exercising the power under an enduring power of
attorney for any matter under the power because the principal
does not have decision making capacity for the matter, then the
attorney may continue to exercise that power even if the
principal regains decision making capacity for that matter.
Subclause (2) clarifies that nothing in this clause should be
taken to enable the attorney to exercise power under an
enduring power of attorney that is invalid or has been revoked.
Clause 42 clarifies that giving an enduring power of attorney does not
affect the principal's power to do anything that the principal is
otherwise legally capable of doing.
PART 5--ENDURING POWERS OF ATTORNEY--ENDING
Division 1--Provision in enduring power of attorney as to
revocation
Clause 43 provides than an enduring power of attorney is revoked
according its terms. The revocation provisions in Divisions 2
and 3 as to revocation of an enduring power of attorney are
subject to the terms of the enduring power of attorney.
Division 2--Revocation by principal
Clause 44 states that a principal may revoke the enduring power of
attorney, or the appointment of an attorney or alternative
attorney under the enduring power of attorney, if the principal
has decision making capacity in relation to making an enduring
power of attorney giving the same power.
Clause 45 states that the revocation of an enduring power of attorney must
be in the prescribed form.
20
Clause 46 details how an instrument of revocation should be executed.
An instrument revoking an enduring power of attorney must be
executed by the principal signing the instrument or a person
who is eligible to do so signing the instrument in the presence
of and at the direction of the principal. Two persons who are
present, and who sign and date the instrument in the presence
of each other and the principal, must witness the instrument.
The witnesses must certify in writing in the manner outlined in
clause 49 of the Bill.
Clause 47 specifies who is eligible to sign an instrument revoking an
enduring power of attorney at the direction of the principal.
A person is eligible if the person is of or over 18 years of age,
is not a witness to the signing of the instrument, and is not an
attorney under the enduring power of attorney.
Subclause (2) clarifies that a person is not excluded from
signing at the principal's direction merely because the person is
an employee of an attorney under the power who signs while
acting in the ordinary course of their employment.
Clause 48 sets out the eligibility requirements for persons to witness the
signing of an instrument revoking an enduring power of
attorney.
Subclause (1) provides that as to the two persons who witness
under clause 46(b) both should be eligible to do so under
subclause (2) and at least one of the witnesses signing must be
either authorised to witness affidavits or a medical practitioner.
Subclause (2) provides that a person is eligible to witness the
signing of the instrument of revocation if the person is of or
over 18 years of age; and is not--
· signing at the direction of the principal; and
· an attorney under the power of attorney, and
· a relative of the principal, a relative of an attorney, or a
care worker or accommodation provider for the
principal.
Subclause (3) clarifies that a person is not excluded from
witnessing merely because the person is an employee of an
attorney under the power who signs while acting in the ordinary
course of their employment.
21
Clause 49 sets out the certification requirements for witnesses who witness
the signing of an instrument revoking an enduring power of
attorney.
Subclause (1) specifies that a witness who witnesses a principal
signing an instrument of revocation must certify that the
principal appeared sign the instrument freely, voluntarily and
appeared to the witness to have decision making capacity to
revoke the enduring power of attorney. The subclause provides
that the witness must state that they are not one of the persons
listed in clause 49(b) who are excluded from witnessing
including: an attorney under the power of attorney; a relative of
the principal or of an attorney; or a care worker or
accommodation provider for the principal. If the witness is a
person authorised to witness affidavits or a medical practitioner
the witness must state their qualification.
Subclause (2) relates to witnessing the signature of a person
who signs an instrument of revocation at the direction of the
principal. This clause includes requirement that witnesses
certify that--
· the principal appeared to freely and voluntarily direct
the person to sign for the principal; and
· the person signed in the presence of the principal and
the witness; and
· the principal, at the time the person signed the
instrument, appeared to have decision making capacity
to revoke the enduring power of attorney.
The subclause provides that the witness must state that they are
not one of the persons listed in subclause (2)(b) who are
excluded from witnessing including: a person signing at the
direction of the principal; an attorney under the power; a
relative of the principal or an attorney; or a care worker or
accommodation provider for the principal. If the witness is a
person authorised to witness affidavits or a medical practitioner
the witness must state their qualification.
Clause 50 sets out the notification requirements when a principal revokes
an enduring power of attorney.
Subclause (1) provides that the principal must take reasonable
steps to inform any attorneys under the power that it has been
revoked.
22
Subclause (2) provides that upon revoking the appointment of
an attorney or alternative attorney under the power of attorney,
the principal must take reasonable steps to inform that attorney
or alternative attorney and all other attorneys and alternative
attorneys that the power has been revoked.
Subclause (3) provides that failure to notify under this clause
does not affect the validity of any revocation.
Subclause (4) sets out what reasonable steps means for the
purposes of this clause including: sending the notification by
post to the last know residential address for an individual and
last known business address for a body corporate.
Division 3--Other revocation
Clause 51 provides that an enduring power of attorney is revoked on the
death of the principal.
Clause 52 provides that when an attorney under an enduring power of
attorney dies, the power of attorney is revoked so far as it gives
power to that attorney.
Clause 53 provides if an attorney under an enduring power of attorney
becomes a person who does not have decision making capacity
for the matters to which the enduring power of attorney applies,
then the power of attorney is revoked so far as it gives power to
that attorney.
Clause 54 provides that an enduring power of attorney, so far as it gives
power to an attorney, is revoked if after appointment an attorney
becomes ineligible, and provides for notification of revocation
of appointment.
Subclause (1) provides a list of circumstances under which of
an enduring power of attorney is revoked so far as it gives
power to an attorney who is an individual including: if an
attorney becomes insolvent under administration; or becomes a
care worker, health provider or an accommodation provider for
the principal, or, for an attorney for financial matters, if the
attorney is convicted or found guilty of an offence involving
dishonesty.
Subclause (2) provides that an enduring power of attorney is
revoked so far as it gives power to an attorney who is a trustee
company, if, after the appointment of the trustee company, the
company is wound up or ceases to be registered.
23
Subclause (3) provides that an attorney must take reasonable
steps to notify: the principal if they have decision making
capacity for the matters for which the attorney has power, any
other attorney, and any alternative attorney, if--
· the appointment of the attorney is revoked by the
operation of subclause (1) or (2); or
· if the attorney is a trustee company, a proceeding
against the company for winding up commences; or the
company is convicted or found guilty of an offence
involving dishonesty.
Subclause (3)(d) provides that if the principal does not have
decision making capacity for the matter for which the attorney
has power, and there is no other attorney or alternative attorney
to notify, then the attorney must notify the nearest relative of
the principal. If the attorney is not able to notify the nearest
relative then reasonable steps must be taken to notify the Public
Advocate.
Subclause (5) requires notification under this clause to be in the
prescribed form.
Subclause (6) clarifies that any failure by the attorney to give
notification under this clause does not affect the validity of the
revocation of the power.
Clause 55 provides that an enduring power of attorney is revoked by a
later enduring power of attorney of the principal, so far as the
later enduring power of attorney is inconsistent, unless specified
otherwise in the enduring power of attorney.
Division 4--Resignation of attorney or alternative attorney
when principal has decision making capacity
Clause 56 states that an attorney or an alternative attorney under an
enduring power of attorney, who has power for a matter, may
resign at any time when the principal has decision making
capacity for the matter. On the resignation of the attorney or
alternative attorney, the enduring power of attorney is revoked
so far as it gives power to the attorney or alternative attorney.
Clause 57 states that resignation by an attorney or alternative attorney
under this Division must be in the prescribed form.
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Clause 58 outlines who must be notified when an attorney or alternative
attorney resigns.
Subclause (1) provides that an attorney who resigns for a matter
must take reasonable steps to inform--
· the principal;
· any other attorney and any alternative attorney under the
enduring power of attorney.
Subclause (2) provides that an alternative attorney who resigns
must take reasonable steps to inform: the principal; and any
attorney under the enduring power of attorney.
Subclause (3) provides that a failure by the attorney or
alternative attorney to give a notification under this clause does
not affect the validity of the resignation of the attorney.
Division 5--Resignation of attorney or alternative attorney
when principal does not have decision making capacity
Clause 59 provides for the resignation by an attorney or alternative
attorney under an enduring power of attorney when the
principal does not have decision making capacity for a matter.
Subclause (1) provides that an attorney with power for a matter
may resign, when the principal does have decision making
capacity for the matter, if there is another attorney with power
for the matter; or if there is an alternative attorney with power
for the matter who is able and willing to act. If there is no other
attorney or alternative attorney then an attorney may resign with
leave from VCAT or the Supreme Court.
Under subclause (2) an alternative attorney under an enduring
power of attorney with power for a matter and who is acting
under that power, may resign as alternative attorney for that
matter at any time when the principal does not have decision
making capacity for the matter with leave from VCAT or the
Supreme Court.
Under subclause (3), an alternative attorney under an enduring
power of attorney who has power for a matter and who is not
acting as attorney may resign as alternative attorney for that
matter when the principal does not have decision making
capacity for the matter.
25
Clause 60 provides that resignation by an attorney or alternative attorney
under an enduring power of attorney must be in the prescribed
form.
Clause 61 provides for notification requirements for resignation by an
attorney or alternative attorney under an enduring power of
attorney.
Subclause (1) provides that if an attorney resigns and there is
another attorney with the power for the matter, then the attorney
must take reasonable steps to notify the other attorney who has
power for the matter, and any alternative attorney.
Subclause (2) provides that if an attorney with power for a
matter resigns and there is no other attorney who has power for
the matter, but there is an alternative attorney who has power
for the matter and who is able and willing to act, then the
attorney must take reasonable steps to notify the alternative
attorney, and any other alternative attorney under the power.
Subclause (3) provides that if an alternative attorney resigns
who is not acting under the power, the alternative attorney must
take reasonable steps to notify any attorney under the enduring
power of attorney, and any other alternative attorney.
Subclause (4) clarifies that a failure to notify under this clause
does not affect the validity of the resignation of the attorney or
alternative attorney.
Division 6--Effect of attorney's power ending where more
than one attorney
Clause 62 outlines the effect of the ending of an attorney's power under an
enduring power of attorney where there is more than one
attorney.
The clause provides that the ending of any power of an attorney
or attorneys appointed jointly, jointly and severally, severally or
as a majority does not affect the ability of the remaining
attorneys who have power to exercise that power, unless
specified otherwise in the enduring power of attorney.
Subclause (4) clarifies that a principal may specify in the
enduring power of attorney, that subclauses (1), (2) or (3) does
not apply.
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PART 6--ENDURING POWERS OF ATTORNEY--
OPERATION
Division 1--Duties of attorney
Clause 63 outlines the duties of an attorney under an enduring power of
attorney. The clause provides that an attorney must--
· act honestly, diligently and in good faith; and
· exercise reasonable skill and care; and
· not use the position for profit, unless permitted under
clause 70; and
· avoid acting where there is a conflict of interest unless
the power so authorises; and
· not disclose confidential information gained as the
attorney under the power unless authorised by the power
or by law; and
· keep accurate records and accounts as required by
clause 66.
Subclause (2) makes clear that nothing in subclause (1) is to be
taken to affect any duty that an attorney has at common law.
Clause 64 subclause (1) provides that an attorney for financial matters
under an enduring power of attorney must not enter into a
transaction in that capacity, if there is or may be a conflict
between--
· the duty of the attorney to the principal; and
· the interests of the attorney or a relative, business
associate or close friend of the attorney.
Subclause (2) provides that the prohibition against conflict
transactions does not apply in relation to--
· a gift made in accordance with clause 67; or
· a transaction providing for maintenance of a principal's
dependent under clause 68; or
· a transaction merely because the in the transaction the
attorney, in the attorney's own right and on behalf of the
principal, deals with an interest in property which is
jointly held by the attorney and the principal or obtains
27
a loan or gives a guarantee or indemnity in relation to an
interest in property jointly held; or
· the acquisition of an interest in property to be held
jointly by the attorney and the principal, when the
principal has decision making capacity for the matter; or
· obtaining a loan or giving a guarantee or indemnity in
respect of the acquisition of an interest in property to be
held jointly by the attorney and principal, when the
principal has decision making capacity for the matter.
Clause 65 sets out the circumstances where an attorney for financial
matters can enter into permitted conflict transactions, despite
the prohibition on conflict transactions outlined in clause 64.
Subclause (1) provides that the attorney for financial matters
may enter into a conflict transaction, if before the time of the
transaction, the principal authorises the attorney to enter into:
the transaction; or the kind of transaction; or conflict
transactions generally.
Subclause (2) provides that an attorney for financial matters
under an enduring power of attorney may continue a conflict
transaction that the attorney has entered into and that is not
completed, if--
· the principal validates the entering into of the
transaction; and
· at the time of validation the principal has decision
making capacity for the transaction.
Subclause (3) provides that the principal under an enduring
power of attorney may validate a conflict transaction entered
into by an attorney for financial matters under an enduring
power of attorney that has been completed if, the principal has
decision making capacity for the transaction at the time of
validation.
Subclause (4) also allows VCAT to authorise the attorney for
financial matters to enter into a conflict transaction, if before the
time of the transaction, VCAT authorises the attorney to enter
into the transaction or kind of transaction, or conflict
transactions generally.
Subclause (5) provides that VCAT may validate a conflict
transaction that an attorney for financial matters has entered into
that has been completed.
28
Subclause (6) provides that if a transaction is validated by the
principal or by VCAT then the transaction is taken to be valid
from its commencement.
Subclause (7) defines conflict transaction for the purposes of
clause 65 to mean a transaction that an attorney must not enter
into under clause 64.
Clause 66 states that an attorney under an enduring power of attorney must
keep accurate records and accounts of all dealings and
transactions for financial matters; and all material dealings and
transactions for personal matters.
Clause 67 sets out when an attorney can make gifts of a principal's
property and when these gifts must be recorded.
Under subclause (1) an attorney for financial matters under an
enduring power of attorney may make a gift of the principal's
property, subject to any conditions or restrictions stated in the
enduring power of attorney only if--
· the gift is reasonable having regard to all the
circumstances, and in particular the principal's financial
circumstances; and
· the gift--
· is to a relative or a close friend of the principal
and is of a seasonal nature or for a special event.
An example of a special event is a birth or
marriage; or
· is of a type of donation that the principal made
when they had decision making capacity for the
matter, or that the principal might reasonably be
expected to make.
Subclause (2) provides that a gift may be made under subclause
(1), even though the gift is made to: the attorney, a relative or
close friend of the attorney, or an organisation with whom the
attorney has a connection.
Subclause (3) provides that if the attorney makes a gift to the
attorney, a relative or close friend of the attorney or an
organisation with which the attorney has a connection, and the
total value of the gift is of or over the prescribed amount, or if
no amount has been prescribed, $100, a written record of the
gift must be kept.
29
Subclause (4) provides that a written record must set out the
amount of the gift and the person or organisation to whom the
gift has been made.
Clause 68 allows an attorney for financial matters under an enduring
power of attorney to provide for the needs of a dependent of the
principal from the principal's property, if the enduring power of
attorney so provides.
Unless otherwise provided for in the enduring power of
attorney, the amount provided must not be more than what is
reasonable having regard to all the circumstances, particularly
the principal's financial circumstances.
Clause 69 provides that an attorney for financial matters under an enduring
power of attorney to must keep the attorney's property separate
from the principal's property.
The requirement for the separation of property does not apply if
the property is jointly owned by the principal and attorney, or is
property acquired jointly by the principal and the attorney in
place of property owned jointly by the principal and attorney.
Clause 70 states that an attorney under an enduring power of attorney is
not entitled to any remuneration unless it is specifically
authorised by the enduring power of attorney or by law.
Division 2--Decision making between more than one attorney
Clause 71 sets out the process for resolving a disagreement between an
attorney for personal matters and an attorney for financial
matters where attorneys are authorised to act severally under an
enduring power of attorney.
Under paragraph (a) either attorney may apply to VCAT for an
order as to how the matter should be resolved, and under
paragraph (b) unless the enduring power of attorney otherwise
provides or unless otherwise ordered by VCAT, the decision of
the attorney for personal matters prevails to the extent of any
inconsistency.
Clause 72 states that an attorney for financial matters appointed under an
enduring power of attorney must implement a decision of an
attorney for personal matters under that power of attorney.
Subclause (2) provides that an attorney for financial matters
must apply to VCAT under Part 8 for an order, if the
implementation of a decision of the attorney for personal
30
matters would result in serious depletion of the principal's
financial resources.
Division 3--Protection and relief from liability
Clause 73 provides for the interpretation of what constitutes knowledge
that an enduring power of attorney or a power under an
enduring power of attorney is invalid or has been revoked for
the purposes of Division 3.
The clause provides that knowledge that an enduring power of
attorney is invalid or has been revoked includes--
· knowledge of the happening of an event that invalidates
or revokes the power of attorney or a power under the
enduring power of attorney; or
· having reason to believe that the power of attorney or a
power under the enduring power of attorney is invalid
or has been revoked.
Clause 74 allows the Supreme Court or VCAT to relieve an attorney under
an enduring power of attorney who is or may be personally
liable for a contravention of this Act relating to enduring
powers of attorney from all or part of the attorney's personal
liability for a contravention.
An attorney may be relieved from liability if the Court or
VCAT considers that--
· an attorney under an enduring power of attorney is or
may be personally liable for a contravention of the
provisions of this Act relating to enduring powers of
attorney; and
· the attorney has acted honestly and reasonably and
ought fairly to be excused for the contravention.
Clause 75 provides protection for an attorney or a third party who acts in
reliance on the purported exercise by an attorney of a power
under an enduring power of attorney.
Subclause (1) provides than an attorney who purports to
exercise a power under an enduring power of attorney and who
does so in good faith without knowing that the power being
exercised or the enduring power of attorney is invalid or has
been revoked, is entitled to rely on the power of attorney as
31
against the principal or any other person, despite the invalidity
or revocation.
Subclause (2) provides than a person who acts in reliance on a
purported exercise by an attorney of a power under an enduring
power of attorney and who acts in good faith without knowing
the power is invalid or had been revoked, is entitled to rely on
the purported exercise of the power as against the principal or
any other person.
Clause 76 provides that an attorney who acts in compliance with any
advice, direction, or order of the Supreme Court or VCAT is
taken to have complied with the Act, unless the attorney
knowingly gave the Court or VCAT false or misleading
information relevant to the advice, direction or order.
Division 4--Compensation
Clause 77 provides that the Supreme Court or VCAT may order an
attorney under an enduring power of attorney to compensate
the principal for loss caused by the attorney contravening any
provisions of the Act relating to enduring powers of attorney
when acting as an attorney under the enduring power of
attorney.
Subclause (2) states that compensation may be ordered--
· even if the attorney is convicted of an offence in relation
to the attorney's contravention; and
· even if the principal has died, in which case
compensation is payable to the principal's estate; and
· even if the enduring power of attorney is invalid or has
been revoked, or was invalid or revoked at the time of
contravention.
Clause 78 outlines the persons who may apply for an order for
compensation under clause 77. These persons are--the
principal; or any attorney under the enduring power of attorney;
or an executor or administrator of the principal's estate; or the
Public Advocate; or the nearest relative of the principal; or any
other person whom VCAT is satisfied has a special interest in
the affairs of the principal.
32
Clause 79 outlines the time limits for an application for compensation
where the principal or attorney has died.
Subclause (1) provides that if a principal or an attorney have
died, then an application for an order for compensation must be
made within 6 months after that death. If both the principal and
attorney have died, then an application for an order for
compensation must be made within 6 months after the first
death.
Subclause (2) provides that the Supreme Court or VCAT may
extend the time specified under subclause (1).
Clause 80 provides that VCAT may refer to the Supreme Court an
application made to it for an order for compensation.
Division 5--General matters
Clause 81 states that an enduring power of attorney which complies with
Part 3 of the Act has effect as a deed, regardless of whether it is
expressed to be a deed.
Clause 82 sets out the proof requirements for an enduring power of
attorney, which are the same as for a non-enduring power of
attorney under clause 16.
Clause 83 clarifies the effect of a guardianship order or administration
order on an enduring power of attorney.
Subclause (1) provides that where an administration order for
the principal has been made by VCAT, an attorney for financial
matters under an enduring power of attorney must not exercise
powers for financial matters unless authorised by VCAT, and
then only so far as is authorised.
Subclause (2) provides that where a guardianship order has been
made by VCAT, an attorney for personal matters under an
enduring power of attorney must not exercise powers under the
enduring power of attorney unless authorised by VCAT, and
then only so far as is authorised.
PART 7--SUPPORTIVE ATTORNEY APPOINTMENTS
Division 1--Definitions
Clause 84 sets out definitions to be used in Part 7, which provides for the
formal appointment of a supportive attorney. Under Part 7, a
person is able to appoint a supportive attorney to support the
33
person to make and give effect to the person's own decisions.
The person who makes a supportive attorney appointment is
called the principal.
In Part 7, appointment form means the document creating the
supportive attorney appointment.
A supported decision means a decision about a matter that,
under a supportive attorney appointment, the supportive
attorney is authorised to support the principal in making.
Division 2--Power to make appointment and nature of
appointment
Clause 85 sets out the power to make a supportive attorney appointment
and the scope of such an appointment.
Subclause (1) enables a person to appoint an eligible person to
support the person in making and giving effect to decisions by
exercising any of the powers set out in clauses 87, 88 and 89
that are specified in the supportive attorney appointment.
In accordance with the definitions in clause 3, the person who
makes the supportive attorney appointment is called the
principal and the person appointed under a supportive attorney
appointment is called a supportive attorney.
The eligibility requirements for a person to be appointed as a
supportive attorney are set out in clause 91.
The powers that can be conferred on a supportive attorney are--
· the power under clause 87 to access or obtain
information;
· the power under clause 88 to communicate information
or communicate a supported decision;
· the power under clause 89 to give effect to supported
decisions.
The powers conferred on a supportive attorney must be
specified in the appointment.
The powers can be conferred in relation to any personal,
financial or other matters specified in the appointment.
Subclause (2) makes it clear that under a supportive attorney
appointment, the principal is the decision-maker and not the
supportive attorney.
34
Subclause (3) makes it clear that a supportive attorney
appointment cannot be used to support the principal to conduct
illegal activity or to coerce, intimidate or in any way unduly
influence the principal into a particular course of action.
Clause 86 sets out who may make a supportive attorney appointment.
A person is not able to make a supportive attorney appointment
unless person is of or over 18 years of age and has decision
making capacity in relation to making the appointment.
Decision making capacity is defined in clause 4. For the
purpose of subclause (1)(a) of this definition, understanding the
effect of the decision to make a supportive attorney appointment
includes understanding the following matters--
· that the appointment enables the principal to make and
give effect to their own decision with support;
· that the appointment allows the principal to choose who
will be their supportive attorney;
· that supported decisions are decisions of the principal
and not the supportive attorney;
· when the appointment commences;
· that the principal is able to revoke the appointment at
any time when they have decision making capacity in
relation to making the supportive attorney appointment.
Clause 87 sets out the information power that can be conferred on a
supportive attorney under a supportive attorney appointment.
The clause enables a principal, under a supportive attorney
appointment, to authorise a supportive attorney to access,
collect or obtain from or assist the principal in accessing,
collecting or obtaining from any person any personal
information about the principal. The supportive attorney can
only be authorised in relation to personal information about the
principal that is relevant to a supported decision and that may be
lawfully collected or obtained by the principal.
For example--
· a principal may authorise a supportive attorney to
collect copies of the principal's health records for the
purposes of supporting the principal to make a health
treatment decision;
35
· a principal may authorise a supportive attorney to access
income and banking information for the purposes of
supporting the principal to prepare a budget and to make
a particular financial decision.
Subclause (2) makes it clear that, for the purposes of
clause 87(1), a person who holds personal information about
the principal is authorised to disclose it to a supportive attorney
in accordance with the supportive attorney appointment.
It is noted that the Disability Act 2006, the Health Records
Act 2001 and the Information Privacy Act 2000 include
specific provisions as to disclosure of personal information to
supportive attorneys and access to personal information by
supportive attorneys.
Subclause (3) provides that a supportive attorney may disclose
any personal information about the principal that was accessed
or obtained under clause 87(1) for the purpose of--
· anything that is relevant and necessary to the supportive
attorney carrying out their role;
· any legal proceeding under this Act or any report of a
legal proceeding under this Act;
· any other lawful reason.
Clause 88 sets out the communication powers that can be conferred on a
supportive attorney under a supportive attorney appointment.
Paragraph (a) provides for a principal, under a supportive
attorney appointment, to authorise a supportive attorney to
communicate any information about the principal that is
relevant or necessary to the making of or giving effect to a
supported decision.
For example--
· a principal may authorise a supportive attorney to
communicate the principal's support needs to an
accommodation provider in order to gain information to
assist the principal to decide where the principal will
live; or
· a principal may authorise a supportive attorney to
discuss the principal's health needs with the principal's
doctor in order to gain information to assist the principal
to make a health treatment decision.
36
Paragraph (b) provides for a principal, under a supportive
attorney appointment, to authorise a supportive attorney to
communicate or to assist the principal to communicate a
supported decision of the principal.
For example--
· a principal may authorise a supportive attorney to attend
an appointment with the principal's doctor with the
principal in order to assist the principal to advise the
doctor of a health treatment decision that the principal
has made; or
· a principal may authorise a supportive attorney to notify
a real estate agent of the principal's decision to vacate a
rental property.
Clause 89 sets out the power that can be conferred on a supportive
attorney under a supportive attorney appointment to give effect
to supported decisions.
This clause enables a principal, under a supportive attorney
appointment, to authorise a supportive attorney to take any
reasonable action or to do anything that is reasonably necessary
to give effect to a supported decision, other than a decision
about a significant financial transaction.
Subclause (2) provides for the meaning of significant financial
transaction which includes the following--
· making an investment for the principal or continuing an
investment of the principal, including taking up rights to
issues of new shares or options for new shares to which
the principal becomes entitled by the principal's existing
shareholding. Under subclause (3), the definition of
significant financial transaction does not include
investing an amount of $10 000 or less in total in one or
more interest bearing accounts of an authorised deposit-
taking institution, within the meaning of the
Commonwealth Banking Act 1959;
· undertaking any real estate transaction for the principal,
excluding entering into a residential tenancy for
premises in which the principal lives or intends to live;
· dealing with land on behalf of the principal including
taking out a loan on behalf of the principal or giving a
guarantee on behalf of the principal;
37
· undertaking a transaction for the principal involving the
use of the principal's property as security for an
obligation;
· buying or selling substantial personal property on behalf
of the principal.
Clause 90 outlines the duties of a supportive attorney under a supportive
attorney appointment, which are that the supportive attorney
must--
· act honestly, diligently and in good faith; and
· exercise reasonable skill and care; and
· not use the position for profit; and
· avoid acting where there is or may be a conflict of
interest and, if acting where there is a conflict of
interest, ensure that the interests of the principal are the
primary consideration; and
· discuss anything about a supported decision with the
principal in a way the principal can understand and that
will assist the principal to make the decision.
A supportive attorney under a supportive attorney appointment
is not entitled to receive remuneration for acting as a supportive
attorney.
These duties are similar to the duties that apply to enduring
attorneys under clauses 63 and 70 with appropriate
modifications.
Division 3--Appointment of supportive attorneys
Clause 91 sets out the eligibility requirements to be appointed as a
supportive attorney under a supportive attorney appointment.
In order to be eligible to be appointed as a supportive attorney,
a person must be an individual who--
· is of or over 18 years of age; and
· is not an insolvent under administration; and
· if the person is to be a supportive attorney for financial
matters, has not been convicted or found guilty of an
offence involving dishonesty, or if the person has been
so convicted, has disclosed the conviction or finding of
38
guilt to the principal and recorded this disclosure in the
supportive attorney appointment; and
· is not a care worker, a health provider or an
accommodation provider for the principal.
These eligibility requirements are similar to the eligibility
requirements to be appointed as an enduring attorney under
clause 28. However, while trustee companies and the Public
Advocate are eligible to be appointed as an enduring attorney,
they are not eligible to be appointed as a supportive attorney.
Clause 92 allows a principal to appoint more than one supportive attorney
under a supportive attorney appointment. Such supportive
attorneys will act separately and the principal may specify the
matters for which each supportive attorney is to act.
Unlike the appointment of multiple enduring attorneys under
clause 30, multiple supportive attorneys cannot be appointed to
act as joint attorneys, several attorneys, joint and several
attorneys or as majority attorneys.
Clause 93 allows a principal to appoint an alternative supportive attorney
for their appointed supportive attorney. The alternative
supportive attorney must meet the same eligibility requirements
as a supportive attorney under clause 91.
Subclause (2) sets out when an alternative supportive attorney is
authorised to act.
An alternative supportive attorney is authorised to act in
circumstances outlined in the appointment.
Where no circumstances are specified in the appointment, the
alternative supportive attorney is authorised to act if--
· the supportive attorney for whom the alternative
supportive attorney is appointed dies, does not have
decision making capacity for the matters to which the
appointment applies or is otherwise not willing or able
to act; or
· the appointment of the supportive attorney for whom the
alternative supportive attorney is appointed is revoked
by operation of clause 109(4), which provides for the
revocation of a supportive attorney appointment where
the supportive attorney:
· becomes an insolvent under administration; or
39
· becomes a care worker, a health provider or an
accommodation provider for the principal; or
· is a supportive attorney for financial matters and is
convicted or found guilty of an offence involving
dishonesty.
The circumstances in which an alternative supportive attorney
can act are similar to the circumstances in which an alternative
enduring attorney can act as set out in clause 31.
The provisions of the Bill that relate to supportive attorneys
apply to an alternative supportive attorney appointed under a
supportive attorney appointment, when the alternative
supportive attorney is acting under the appointment, in the same
way that they apply to any supportive attorney appointed under
the appointment.
Division 4--Making an appointment
Clause 94 provides that a supportive attorney appointment must be made
in the prescribed form.
In accordance with section 53 of the Interpretation of
Legislation Act 1984, strict compliance with the prescribed
form is not necessary. A form in or to the like effect of the
prescribed form will be sufficient in law.
This is consistent with the requirement under clause 32 for an
enduring power attorney to be in the prescribed form.
Clause 95 sets out how a supportive attorney appointment must be
executed.
A supportive attorney appointment form must be signed by the
principal or by an eligible person signing in the presence of and
at the direction of the principal. The eligibility requirements for
a person to sign on behalf of the principal are set out under
clause 96.
Further, the signing of the supportive attorney appointment
form must be witnessed by two persons, who must also sign
and date the form in the presence of each other and the
principal and certify to particular matters required by clause 98.
The eligibility requirements for the witnesses are set out in
clause 97.
The execution requirements for the appointment of a supportive
attorney are similar to the requirements for the execution of an
enduring power of attorney under clause 33.
40
Clause 96 sets out who is eligible to sign a supportive attorney
appointment form at the direction of the principal.
A person is eligible to sign an appointment form at the direction
of the principal if the person is of or over 18 years of age, is not
a witness to the execution of the appointment and is not a
supportive attorney under the appointment.
To avoid doubt, a person is not excluded from being eligible to
sign the appointment form at the principal's direction merely
because the person is an employee of a supportive attorney who
signs the form while acting in the ordinary course of their
employment.
These eligibility requirements are similar to the eligibility
requirements for a person signing an enduring power of attorney
at the direction of the principal under clause 34.
Clause 97 sets out the eligibility requirements for the two witnesses who
are to witness the signing of a supportive attorney appointment
under clause 95(b).
Both witnesses must be of or over 18 years of age and must not
be either a supportive attorney under the appointment or a
person signing the appointment form at the direction of the
principal.
One of the witnesses must be a person who is authorised by law
to witness the signing of a statutory declaration.
One of the witnesses must have a degree of independence from
the principal, so must not be--
· a relative of the principal; or
· a relative of the supportive attorney being appointed; or
· a care worker or an accommodation provider for the
principal.
To avoid doubt, a person is not excluded from being eligible to
witness the signing of a supportive attorney appointment merely
because the person is an employee of a supportive attorney who
signs the form while acting in the ordinary course of their
employment.
These eligibility requirements are similar to the eligibility
requirements for witnessing an enduring power of attorney
under clause 35. However, whereas one of the witnesses to the
signing of a supportive attorney must be a person authorised to
witness statutory declarations, one of the witnesses to the
41
signing of an enduring power of attorney must be either
authorised to witness affidavits or be a medical practitioner.
Clause 98 sets out the matters to which witnesses to the signing of a
supportive attorney appointment must certify.
A witness who witnesses a principal signing a supportive
attorney appointment form must certify on the form that--
· the principal appeared to freely and voluntarily sign the
form in the presence of the witness; and
· at the time the principal signed the form, the principal
appeared to the witness to have decision making
capacity relation to making the supportive attorney
appointment
Such a witness must also state that they are not a supportive
attorney under the appointment and, if authorised by law to
witness the signing of statutory declarations, state the
qualification on which they are acting.
A witness who witnesses another person signing a supportive
attorney appointment form at the direction of the principal must
certify on the form that--
· in the presence of the witness, the principal appeared to
freely and voluntarily direct the person to sign for them;
and
· the person signed the form in the presence of the
principal and the witness; and
· at the time the person signed the form, the principal
appeared to have decision making capacity in relation to
making the supportive attorney appointment.
Such a witness must also state that they are not a supportive
attorney under the appointment or the person signing the
appointment form at the direction of the principal.
The certification and statement by a witness in either situation
must be signed by the witness.
The certification and statement requirements for witnesses to
the signing of a supportive attorney appointment are similar to
the requirements for witnesses to the signing of an enduring
power of attorney under clause 36. The differences in the
requirements reflect the different eligibility requirements for
witnesses for the two appointments.
42
Clause 99 requires a supportive attorney to formally accept their
appointment for it to be effective.
To accept a supportive attorney appointment, the supportive
attorney must sign a statement of acceptance in the prescribed
form. The supportive attorney must state that they--
· are eligible to act as a supportive attorney; and
· understand the obligations of a supportive attorney and
the consequences of failing to comply with the Act; and
· undertake to act in accordance with the Act.
The signing of the statement of acceptance must be witnessed
by a person who is of or over 18 years of age and who must also
sign that they have witnessed the supportive attorney signing
the statement of acceptance.
These requirements are similar to the requirements for an
enduring attorney to formally accept their appointment under
clause 37.
Clause 100 requires an alternative supportive attorney to formally accept
their appointment for it to be effective.
To accept appointment as an alternative supportive attorney,
the alternative supportive attorney must sign a statement of
acceptance in the prescribed form. The alternative supportive
attorney must state that they--
· are eligible to act as a supportive attorney; and
· understand the obligations of a supportive attorney and
the consequences of failing to comply with the Act; and
· undertake to act in accordance with the Act; and
· understand the circumstances in which the alternative
supportive attorney is authorised to act (as set out in
clause 93); and
· are prepared to act in the place of the supportive
attorney when authorised to do so.
The signing of the statement of acceptance must be witnessed
by a person who is of or over 18 years of age and who must also
sign that they have witnessed the alternative supportive attorney
signing the statement of acceptance.
43
These requirements are similar to the requirements for an
alternative enduring attorney to formally accept their
appointment under clause 38.
Division 5--Commencement and ending of supportive attorney
appointment
Clause 101 sets out when a supportive attorney appointment commences.
The principal may specify in the appointment form when the
supportive attorney's appointment commences. If this is not
specified, the supportive attorney appointment commences once
it is made.
Clause 102 provides that a supportive attorney appointment does not have
effect for any period during which the principal does not have
decision making capacity for the matters to which the
supportive attorney appointment applies. In accordance with
the definition of decision making capacity in clause 4, the
principal will not have decision making capacity if it is not
possible for them to make a decision in the matter with
practicable and appropriate support.
Clause 103 allows a principal to revoke a supportive attorney appointment,
or the appointment of a supportive attorney or alternative
supportive attorney under the appointment, if the principal has
decision making capacity in relation to making the supportive
attorney appointment.
This ability of the principal to revoke a supportive attorney
appointment is similar to the ability of a principal to revoke an
enduring power of attorney under clause 44.
Clause 104 requires the revocation of a supportive attorney appointment
under clause 103 to be in the prescribed form.
In accordance with section 53 of the Interpretation of
Legislation Act 1984, strict compliance with the prescribed
form is not necessary. A form in or to the like effect of the
prescribed form will be sufficient in law.
This is consistent with the requirement under clause 45 for a
revocation of an enduring power attorney to be in the prescribed
form.
44
Clause 105 sets out how a form of revocation must be executed.
A form of revocation must be signed by the principal or by an
eligible person signing in the presence of and at the direction of
the principal. The eligibility requirements for a person to sign
on behalf of the principal are set out under clause 106.
Further, the signing of the form of revocation must be witnessed
by one witness who must also sign and date the form in the
presence of the principal. The eligibility requirements for the
witness are set out in clause 107.
The execution requirements for the revocation of a supportive
attorney differ from the execution requirements for the
revocation of an enduring power of attorney under clause 46,
which require two witnesses to witness the signing of the form
and to certify as to particular matters.
Clause 106 sets out who is eligible to sign a form of revocation at the
direction of the principal.
A person is eligible to sign a form of revocation at the direction
of the principal if the person is of or over 18 years of age, is not
a witness to the signing of the form and is not a supportive
attorney under the supportive attorney appointment.
To avoid doubt, a person is not excluded from being eligible to
sign the form of revocation at the principal's direction merely
because the person is an employee of a supportive attorney who
signs the form while acting in the ordinary course of their
employment.
These eligibility requirements are similar to the eligibility
requirements for a person signing an instrument of revocation of
an enduring power of attorney at the direction of the principal
under clause 47.
Clause 107 sets out the eligibility requirements for the witness who is to
witness the signing of a form of revocation under clause 105(b).
The witness must be of or over 18 years of age and authorised
to witness the signing of statutory declarations. The witness
must not be: a person signing the form at the direction of the
principal; a supportive attorney; a relative of the principal; a
relative of the supportive attorney; a care worker or
accommodation provider for the principal.
To avoid doubt, a person is not excluded from being eligible to
witness the signing of the form of revocation merely because
the person is an employee of a supportive attorney who signs
45
the form while acting in the ordinary course of their
employment.
These eligibility requirements are similar to the eligibility
requirements for witnessing the instrument of revocation of an
enduring power of attorney under clause 48. However, whereas
the witness to the signing of a form of revocation of a
supportive attorney must be a person authorised to witness
statutory declarations, one of the witnesses to the signing of an
instrument of revocation of an enduring power of attorney must
be either authorised to witness affidavits or be a medical
practitioner.
Clause 108 provides for requirements for notification of a revocation of a
supportive attorney appointment by the principal under
clause 103.
A principal who revokes a supportive attorney appointment
under clause 103 must take reasonable steps to inform any
supportive attorneys under the supportive attorney appointment
that it has been revoked.
A principal who revokes the appointment of a supportive
attorney or alternative supportive attorney under clause 103
must take reasonable steps to inform that supportive attorney or
alternative supportive attorney, and all other supportive
attorneys or alternative supportive attorneys under the
appointment that it has been revoked.
However, a failure to give notification under this clause will not
affect the validity of the revocation.
These notification requirements on the revocation of the
supportive attorney appointment by the principal are similar to
the notification requirements on the revocation of the enduring
power of attorney under clause 50. However, the clause is less
prescriptive about what will amount to reasonable steps to
notify and is intended to be less onerous.
Clause 109 sets out other circumstances in which a supportive attorney
appointment is revoked.
A supportive attorney appointment is revoked on the death of
the principal.
A supportive attorney appointment is revoked on the death of
the supportive attorney, so far as it gives power to that
supportive attorney.
46
A supportive attorney appointment is revoked, so far as it gives
power to a supportive attorney, if, after appointment, the
supportive attorney becomes a person who does not have
decision making capacity for the matters to which the
supportive attorney appointment applies.
A supportive attorney appointment is revoked, so far as it gives
power to a supportive attorney, if, after appointment--
· the supportive attorney becomes insolvent under
administration; or
· the supportive attorney becomes a care worker, health
provider or accommodation provider for the principal;
or
· a supportive attorney for financial matters is convicted
or found guilty of an offence involving dishonesty.
These circumstances are similar to the circumstances in which
an enduring power of attorney will be revoked under clauses 51,
52, 53 and 54(1).
Clause 110 requires a supportive attorney to take all reasonable steps to
notify relevant persons if the supportive attorney appointment is
revoked by operation of clause 109(4). That is, if the supportive
attorney appointment is revoked because--
· the supportive attorney becomes insolvent under
administration; or
· the supportive attorney becomes a care worker, health
provider or accommodation provider for the principal;
or
· a supportive attorney for financial matters is convicted
or found guilty of an offence involving dishonesty.
However, a failure to give such notification will not affect the
validity of the revocation.
Clause 111 allows a supportive attorney or an alternative supportive
attorney to resign from their appointment.
47
Clause 112 requires the resignation by a supportive attorney or alternative
supportive attorney to be in the prescribed form.
In accordance with clause 53 of the Interpretation of
Legislation Act 1984, strict compliance with the prescribed
form is not necessary. A form in or to the like effect of the
prescribed form will be sufficient in law.
This is consistent with the requirement under clause 57 for a
resignation of an enduring attorney or alternative attorney to be
in the prescribed form.
Clause 113 requires a person who resigns as a supportive attorney or
alternative supportive attorney to take all reasonable steps to
notify relevant persons of the resignation. However, a failure
by the supportive attorney or alternative supportive attorney to
give such notification will not affect the validity of the
resignation.
Division 6--Protection and relief from liability
Clause 114 provides protection for a supportive attorney or other person
who does not know that a supportive attorney appointment does
not have effect.
A supportive attorney who purports to exercise a power under a
supportive attorney appointment and who does so in good faith
and without knowing that the appointment does not have effect,
is entitled to rely on the purported exercise of the power despite
the fact that the appointment does not have effect.
A person who acts in reliance on the purported exercise by a
supportive attorney of a power under a supportive attorney
appointment and who acts in good faith and without knowing
the power does not have effect, is entitled to rely on the
appointment despite the fact that the appointment does not have
effect.
For the purposes of this clause, a supportive attorney
appointment does not have effect if the appointment is
invalid, revoked or does not have effect under clause 102.
Under clause 102, a supportive attorney appointment does not
have effect for any period during which the principal does not
have decision making capacity for the matters to which the
supportive attorney appointment applies.
48
PART 8--VCAT JURISDICTION
Division 1--Interpretation
Clause 115 provides that for this Part, the term VCAT Act means the
Victorian Civil and Administrative Tribunal Act 1998.
Division 2--VCAT hearing at first instance
Clause 116 empowers VCAT to make orders about the matters listed in this
clause.
Subclause (1) provides that VCAT, on application under
Division 3 or on its own initiative, may make an order about the
following matters--
· any matter for or with respect to an attorney' s power
under the enduring power of attorney including scope
and exercise of the power of attorney;
· the effect of any failure to comply with the method of
execution of enduring powers of attorney or of
instruments of revocation of enduring powers of
attorney required by this Act;
· the validity of the enduring power of attorney
· the validity of a transaction by an attorney under the
enduring power of attorney if VCAT is satisfied there
has been a failure to comply with Part 6 or for any other
reason;
· the lodgement with VCAT of accounts or other
documents relating to the exercise of an enduring power
of attorney over a specified period by the attorney
responsible under this Act for keeping them;
· the examination and auditing of accounts or other
documents relating to the exercise of an enduring power
of attorney over a specified period, including:
determining the person to be responsible for examining
or auditing the accounts or other documents, and
whether the person responsible should be paid and the
amount of such payment;
49
· giving a report on any examination and audit conducted
under subclause (1)(f) to VCAT, the applicant or any
other person ordered by VCAT;
· any other matter VCAT considers necessary in relation
to the enduring power to of attorney.
Subclause (2) provides that VCAT may make an order about
any one or more of the following matters in relation to a
supportive attorney appointment--
· the principal's decision making capacity for the matters
to which a supportive appointment applies at the time of
making the appointment or after an appointment was
made
· the effect of a principal not having decision making
capacity on the supportive attorney appointment;
· the effect on the supportive attorney appointment of any
failure to comply with a requirement of this Act;
· whether the supportive attorney has failed to comply
with the terms of the appointment or is exercising undue
influence over the principal;
· any other matter VCAT considers necessary in relation
to the supportive attorney appointment.
The note beneath subclause (2)(d) clarifies that under the
VCAT Act, VCAT has power to give directions and make
declarations.
This clause replaces sections 125V(1), 125Y, 125ZB of the
Instruments Act 1958, but differs from these sections in that it
also includes new VCAT powers in relation to supportive
attorneys and supportive attorney appointments.
Clause 117 sets out considerations VCAT must take into account in making
a decision under clause 116 (1)(b) about the validity of an
enduring power of attorney where there has been a failure to
comply with execution requirements.
Subclause (1) provides that VCAT must not decide that an
enduring power of attorney is valid, even though the fact the
requirements for execution were not complied with unless
VCAT is satisfied that--
· the principal and attorney intended the document to be
an enduring power of attorney; and
50
· at the time the document was signed the principal had
decision making capacity in relation to the making of
the enduring power of attorney; and
· the principal signed the document freely and
voluntarily, or directed another person to sign the
document and was present when the person signed the
document.
Subclause (2) provides that VCAT must not decide that the
revocation of an enduring power of attorney is valid, even
though the requirements for revocation under this Act were not
complied with unless VCAT is satisfied that--
· the principal intended to revoke the enduring power of
attorney; and
· at the time the instrument of revocation was signed the
principal had decision making capacity in relation to
making the enduring power of attorney giving the same
power; and
· the principal signed the instrument of revocation freely
and voluntarily, or directed another person to sign the
instrument of revocation and was present when the
person signed the instrument of revocation.
Clause 118 provides considerations VCAT must take into account in
making a decision about the invalidity of an enduring power of
attorney under clause 116(1)(c).
The clause provides that VCAT must not make an order
declaring that an enduring power of attorney is invalid unless
VCAT is satisfied that--
· the principal did not have decision making capacity in
relation to making the enduring power of attorney at the
time the enduring power of attorney was made; or
· at the time the enduring power of attorney was made it
did not comply with the requirements of the Act; or
· dishonesty or undue influence was used on the principal
to make the enduring power of attorney; or
· the enduring power of attorney was legally invalid when
entered into.
51
Clause 119 provides that if VCAT makes an order declaring that an
enduring power of attorney is invalid under clause 116(1)(c),
the enduring power of attorney is void from its commencement.
Clause 120 outlines the nature of the orders that VCAT may make under
clause 116 in relation to enduring powers of attorney and
supportive attorney appointments.
Subclause (1) provides that VCAT has power to do the
following as to enduring powers of attorney--
· revoke all or part of the enduring power of attorney;
· revoke the appointment of an attorney under an
enduring power of attorney;
· vary the effect of an enduring power of attorney;
· suspend the enduring power of attorney for a specified
period, either generally or as to a specified matter;
· authorise or validate a transaction for the purpose of
clause 65 which relates to conflict transactions;
· make any other order it considers necessary in relation
to an enduring power of attorney;
· do any other thing that VCAT is required or permitted
to do by this Act.
Subclause (2) sets out the considerations on the basis of which
VCAT can revoke the appointment of an attorney under an
enduring power of attorney under subclause (1)(b).
The subclause provides that VCAT must be satisfied that: the
attorney is not complying with the provisions of this Act that
relate to enduring powers of attorney; and the principal does not
have decision making capacity in relation to making an the
enduring power of attorney giving the same power.
Subclause (3) provides that VCAT has power to do the
following as to supportive attorney appointment--
· revoke the supportive attorney appointment or the
appointment of an attorney under an supportive attorney
appointment;
· vary the effect of a supportive attorney appointment;
52
· suspend the supportive attorney appointment for a
specified period, either generally or as to a specified
matter;
· make any other order it considers necessary in relation
to a supportive attorney appointment.
Clause 121 states that VCAT may give an advisory opinion about any
matter relating to an enduring power of attorney or supportive
attorney appointment that is referred to it by a person referred
in clause 122(1)(a),(b),(c) or (e). The persons include--the
principal, any attorney under an enduring power of attorney,
any supportive attorney under a supportive attorney
appointment, the Public Advocate, or any other person whom
VCAT is satisfied has a special interest in the affairs of the
principal.
Division 3--Application and procedure, VCAT hearing at
first instance
Clause 122 sets out the persons who may apply to VCAT for an order under
Division 2 as to an enduring power of attorney or supportive
attorney appointment.
Subclause (1) provides a list of the persons who may apply for
an order as to an enduring power of attorney or supportive
attorney appointment. These persons are--the principal; any
attorney under the enduring power of attorney; any supportive
attorney under the supportive attorney appointment; the Public
Advocate; the nearest relative of the principal, or any other
person VCAT considers has a special interest in the affairs of
the principal.
Subclause (2) clarifies that a person who has standing under
subclause (1) may apply to VCAT for a decision where more
than one attorney has been appointed under an enduring power
of attorney and it is impractical or impossible for the attorneys
to exercise power in the manner required by the enduring power
of attorney or by this Act.
Clause 123 sets out who is entitled to notice of an application for an order
relating to enduring powers of attorney or supportive attorney
appointments under Division 2 and notice of a VCAT hearing
or a VCAT order.
53
Subclause (4) entitled person to mean the following--
· the principal;
· for an enduring power of attorney, any attorney under
the enduring power of attorney;
· for a supportive attorney appointment, any supportive
attorney under the supportive attorney appointment;
· the applicant for the order, if the applicant is not a
person otherwise specified in this definition;
· any other person whom VCAT determines must be
notified;
· those of following whom VCAT so determines: any
guardian, alternative guardian, administrator, or primary
carer of the principal under Guardianship and
Administration Act 1986; any domestic partner or
nearest relative of the principal; the Public Advocate; or
any other person.
Clause 124 sets out the parties for a proceeding for the hearing of an
application by VCAT under Division 2.
Paragraphs (a) and (b) provide that the following persons are
parties to a proceeding for the hearing of the application--
· the principal;
· for an enduring power of attorney, any attorney under
the enduring power of attorney;
· for a supportive attorney appointment, any supportive
attorney under the supportive attorney appointment.
These persons are specified for the purpose of section
59(1)(a)(iv) of the VCAT Act. Under section 59(1)(a)(iv) of
the VCAT Act parties to a VCAT proceeding include the
applicant and any person who is specified by the Act that gives
the jurisdiction to VCAT. In this case, the Act giving
jurisdiction to VCAT will be the Bill, once enacted.
Division 4--VCAT rehearing
Clause 125 requires VCAT, on application under Division 5, to rehear an
application under Division 2 on which VCAT has made an
order.
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Subclause (2) clarifies that VCAT has all the same functions
and powers when conducting a rehearing that it had for the
matter at first instance.
Clause 126 outlines matters which cannot be the subject of a rehearing by
VCAT in relation to an enduring power of attorney or
supportive attorney appointment. These matters are--
· if the order at first instance that was to suspend the
enduring power of attorney or supportive attorney
appointment;
· where an order at first instance was made by VCAT
constituted by the President, whether with or without
others; or
· if the application was for a rehearing or leave to apply
for a rehearing.
Clause 127 outlines the powers of VCAT on rehearing a matter. The clause
provides that VCAT may decide upon rehearing to: affirm the
order made by VCAT at first instance; vary the order made by
VCAT at first instance; or set aside the order made by VCAT at
first instance and make another order in substitution for it.
Clause 128 sets out the effect of a first instance order made by VCAT in
relation to an enduring power of attorney, pending a rehearing.
Subclause (1) provides that an application for rehearing does
not affect the operation of any order to which the application
relates or prevent the taking of action to enforce the order,
unless it is stayed under subclause (2).
Subclause (2) provides that VCAT may make an order staying
the operation of an order to which an application for rehearing
relates pending the determination of the rehearing of the
application.
Clause 129 provides that the VCAT Act applies to a rehearing under
Division as if it were a hearing under that Act. The clause
states that this provision is subject to any contrary provision in
this Division or Division 5.
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Division 5--Application and procedure, VCAT rehearing
Clause 130 sets out persons who may apply to VCAT for a rehearing under
Division 4.
Subclause (1)(a) provides that a person is able to apply to
VCAT for a rehearing under Division 4 if the person was a
party to the hearing of the application at first instance.
Subclause (1)(b) permits a person to apply to VCAT for a
rehearing under Division 4 with the leave of VCAT if the
person was given notice of the application, but was not a
party to the hearing of the application at first instance.
Subclause (1)(b) does not apply to the Public Advocate.
Clause 131 outlines who is entitled to notice of a rehearing by VCAT under
Division 4.
Subclauses (1) (2) and (3) provide that each person who was
entitled to notice of the application for the hearing at first
instance is a person entitled to notice under specified sections of
the VCAT Act.
Clause 132 outlines who are parties to a proceeding for the rehearing by
VCAT of an application under Division 2. The clause provides
that each person who was a party to the proceeding at first
instance is a person specified for the purposes of section
59(1)(a)(iv) of the VCAT Act.
Under section 59(1)(a)(iv) of the VCAT Act parties to a VCAT
proceeding include the applicant and any person who is
specified by the Act that gives the jurisdiction to VCAT. In this
case, the Act giving jurisdiction to VCAT will be the Bill, once
enacted.
Clause 133 sets out the time limit for making an application for a rehearing
by VCAT.
Subclause (1) provides that 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.
Subclause (2) provides that if VCAT gives oral reasons for
making an order and a party then requests written reasons under
section 117 of the VCAT Act, the day on which the written
reasons are given to the party is taken to be the day of the order.
This clause replaces section 125ZC (4) of the Instruments Act
1958 and section 60A(4) and (5) of the Guardianship and
Administration Act 1986, but has similar effect.
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Division 6--Effect on VCAT Act
Clause 134 clarifies that except as provided for in Part 8, nothing in Part 8
is to be taken to affect the operation of the VCAT Act.
PART 9--GENERAL
Clause 135 establishes new offences in relation to enduring powers of
attorney.
Subclause (1) prohibits a person from dishonestly obtaining an
enduring power of attorney to obtain financial advantage for the
person or another person; or to cause loss to the principal or
another person. The penalty for this offence in the case of a
natural person is level 6 imprisonment (5 years maximum)
or 600 penalty units or both, or in the case of a body corporate
2400 penalty units.
Subclause (2) prohibits a person from dishonestly obtaining the
revocation of an enduring power of attorney to obtain financial
advantage for the person or another person; or to cause loss to
the principal or another person. The penalty for this offence in
the case of a natural person is level 6 imprisonment (5 years
maximum) or 600 penalty units or both, or in the case of a body
corporate 2400 penalty units.
Subclause (3) prohibits an attorney under an enduring power of
attorney from dishonestly using an enduring power of attorney
to obtain financial advantage for the attorney or another person;
or to cause loss to the principal or another person. The penalty
for this offence in the case of a natural person is level 6
imprisonment (5 years maximum) or 600 penalty units or both,
or in the case of a body corporate 2400 penalty units.
Subclause (4) provides that a reference to an enduring power of
attorney under this clause includes a reference to an enduring
power of attorney that is invalid or has been revoked.
Clause 136 establishes an offence to dishonestly obtain or use a supportive
attorney appointment. The supportive attorney appointment
provisions in the Bill are new provisions. The offence
provisions for supportive attorney appointments have been
included to prevent abuse of principals under supportive
attorney appointments and for consistency with clause 135 in
relation to enduring powers of attorney.
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Subclause (1) prohibits a person from dishonestly obtaining a
supportive attorney appointment to obtain financial advantage
for the attorney or another person; or to cause loss to the
principal or another person. The penalty for this offence in the
case of a natural person is level 6 imprisonment (5 years
maximum) or 600 penalty units or both.
Subclause (2) prohibits an attorney under a supportive attorney
appointment from dishonestly using an enduring power of
attorney to obtain financial advantage for the attorney or
another person; or to cause loss to the principal or another
person. The penalty for this offence in the case of a natural
person is level 6 imprisonment (5 years maximum) or
600 penalty units or both.
Subclauses (1) and (2) do not contain penalties for a body
corporate as a body corporate is not able to be appointed as a
supportive attorney.
Any reference to supportive attorney appointment under this
clause includes a supportive attorney appointment that is invalid
or has been revoked. For clarity, this clause includes a note that
offences under this clause are indictable offences that may be
heard summarily.
Clause 137 states that if a body corporate commits an offence against a
provision of clause 135(1), (2) or (3) an officer of the body
corporate also commits an offence against the provision if the
officer failed to exercise due diligence to prevent the
commission of the offence by the body corporate.
A court in determining whether an officer of a body corporate
failed to exercise due diligence, may have regard to--
· what the officer knew or ought reasonably to have
known, about the commission of the offence by the
body corporate; and
· whether or not the officer was in a position to influence
the body corporate in relation to the commission of the
offence by the body corporate; and
· what steps the officer took, or could reasonably have
taken, to prevent the commission of the offence by the
body corporate; and
· and any other relevant matter.
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An officer of a body corporate may rely on a defence that would
be available to the body corporate if it were charged with the
offence with which the officer is charged. If the officer does
rely on such a defence then the officer bears the same burden of
proof that the body corporate would bear. This provision is not
intended to limit any other defence available to the officer.
An officer of a body corporate may commit an offence against a
provision of clause 135 whether or not the body corporate has
been prosecuted or found guilty of an offence against that
provision.
Subclause (4) contains definitions of body corporate and officer
for the purposes of the clause.
Clause 138 provides for the recognition of enduring powers of attorney
made in other States and Territories.
The clause provides that if an enduring power of attorney has
been made in another State or Territory of the Commonwealth
and complies with the requirements of that State or Territory,
then the enduring power of attorney is taken to be a power of
attorney made under this Act. This clause applies to enduring
powers of attorney made before or after the commencement of
this Act.
Clause 139 provides that the Governor-in-Council may make regulations
for or with respect to prescribing forms for the purposes of the
Act and any other matter or thing that is authorised or required
to be prescribed or necessary to be prescribed for the purposes
of the Act.
PART 10--TRANSITIONAL AND CONSEQUENTIAL
PROVISIONS, AMENDMENT OF OTHER ACTS
Division 1--Transitional provisions
Clause 140 sets out the definitions used in Part 10.
An old enduring power of attorney means an enduring power
of attorney within the meaning of Part XIA of the Instruments
Act 1958 being an enduring power of attorney in force
immediately before commencement of clause 144(2).
An old enduring power of guardianship means an appointment
of a person as an enduring guardian made under Division 5A of
Part 4 of the Guardianship and Administration Act 1986
being an appointment in force immediately before
commencement of clause 145.
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An old non-enduring power of attorney means a power of
attorney to which Part XI of the Instruments Act 1958 applied
being a power of attorney in force immediately before
commencement of clause 144(1).
Clause 141 provides that amendments to the Instruments Act 1958 made
by clause 144(1) do not affect the validity of an old non-
enduring power of attorney. The law as in force under the
Instruments Act 1958 immediately before commencement of
clause 144(1) is taken to continue to have effect in relation to
old non-enduring powers of attorney.
Clause 142 provides that amendments made to the Instruments Act 1958
in clause 144(2) are not to be taken to affect the validity of
an old enduring power of attorney, subject to subclause (2).
The law as in force under the Instruments Act 1958
immediately before the commencement of clause 144(2) is
taken continue to have effect in relation to the old enduring
power of attorney.
Subclause (2) provides that the following provisions are taken
to apply to an old enduring power of attorney as if it were an
enduring power made under this Act--
· clause 4 which relates to the meaning of decision
making capacity;
· clause 42 which relates to the principal's ability to
continue to exercise power despite the giving of an
enduring power of attorney;
· Divisions 2, 3 and 4 of Part 6 which relate to decision
making between more than one attorney; protection and
relief from liability and compensation for acts of an
attorney;
· clause 82 which relates to proof of an enduring power of
attorney;
· clause 83 which relates to the effect of an administration
order or guardianship order on an enduring power of
attorney;
· clauses 116(1)(a), (e), (f) and (g) in relation to matters
about which VCAT may make an order, in particular
matters relating to scope and exercise of an enduring
60
power of attorney and lodgement, examination and audit
of accounts;
· Divisions 2, 3, 4, and 5 of Part 8 to the extent they relate
to clause 116(1)(a), (e), (f) and (g).
Subclause (3) provides that for the purpose of this clause a
reference in any Act to an enduring power of attorney made
under the Power of Attorney Act 2014 includes a reference to
an old enduring power of attorney.
Clause 143 provides that amendments made to the Guardianship and
Administration Act 1986 by Division 2 are not to be taken to
affect the validity of an old enduring power of guardianship,
subject to subclause (2). The law as in force under the
Guardianship and Administration Act 1986 immediately
before the commencement of Division 2 is taken to continue to
have effect in relation to the old enduring power of
guardianship.
Subclause (2) provides that the following provisions are taken
to apply to an old enduring power of guardianship as if it were
an enduring power of attorney made under this Act--
· clause 4 which relates to the meaning of decision
making capacity;
· clause 42 which relates to the principal's ability to
continue to exercise power despite the giving of an
enduring power of attorney;
· Divisions 2, 3 and 4 of Part 6 which relate to decision
making between more than one attorney; protection and
relief from liability and compensation for acts of an
attorney;
· clause 82 which relates to proof of an enduring power of
attorney;
· clause 83 which relates to the effect of an administration
order or guardianship order on an enduring power of
attorney;
· clause 116(1)(a), (e), (f) and (g) which relate to matters
about which VCAT may make an order, in particular
matters relating to the scope and exercise of an enduring
power of attorney and lodgement, examination and audit
of accounts;
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· Divisions 2, 3, 4, and 5 of Part 8 to the extent they relate
to 116(1)(a), (e), (f) and (g).
Division 2--Amendment of the Instruments Act 1958 and the
Guardianship and Administration Act 1986
Clause 144 repeals Part XI and Part XIA of the Instruments Act 1958,
which deal with non-enduring and enduring powers of attorney
respectively.
Clause 145 repeals Division 5A of Part 4 of the Guardianship and
Administration Act 1986, which deals the with appointment of
enduring guardians.
Clause 146 repeals sections 86 and 86A of the Guardianship and
Administration Act 1986. These sections are transitional
provisions relating to enduring powers of attorney under the
Instruments Act 1958 and enduring guardian appointments
prior to the Guardianship and Administration (Further
Amendment) Act 2006, which are no longer relevant.
Clause 147 repeals Schedule 4 to the Guardianship and Administration
Act 1986, which prescribes the appointment form for an
enduring guardian.
Clause 148 amends the Guardianship and Administration Act 1986, to
reflect the repeal of Division 5A of Part 4 of the Guardianship
and Administration Act 1986 relating to appointment of
enduring guardians.
Division 3--Amendment of other Acts
Clause 149 amends the definition of trustee in section 175(1) of the Crimes
Act 1958 by inserting the phrase "an attorney under an enduring
power of attorney under the Powers of Attorney Act 2014" to
reflect amendments to the Guardianship and Administration
Act 1986 and the new terminology used in the Bill.
Clause 150 amends Schedule 2 of the Criminal Procedure Act 2009 by
inserting reference to new offences created under clauses 135
and 136 of the Bill as a new item before item 22 in Schedule 2
of the Criminal Procedure Act 2009.
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Clause 151 amends sections 3(1) and 39(4)(c) of the Disability Act 2006.
Subclause (1) inserts the phrase "under the Powers of Attorney
Act 2014" into the section 3(1) definition of resident's
administrator in the Disability Act 2006 to reflect the new
terminology used in the Bill.
Subclause (2) inserts a new paragraph (b) into the definition of
resident's guardian in section 3(1) of the Disability Act 2006,
which states "the attorney of the resident appointed to be
responsible for personal matters under the enduring power
of attorney under the Powers of Attorney Act 2014".
This insertion reflects amendments to the Guardianship and
Administration Act 1986.
Subclause (3) inserts a new paragraph (ca) into section 39(4) of
the Disability Act 2006, which states "to a supportive attorney
under a supportive attorney appointment, within the meaning of
the Powers of Attorney Act 2014". Section 39(4) allows for
information sharing for specified purposes to the extent that is
reasonably required in connection with the performance of a
duty or the exercise of a power or function under the Disability
Act 2006 or any other Act. This insertion will allow
information to be shared with a supportive attorney under a
supportive attorney appointment as permitted in section 39 of
the Disability Act 2006.
Clause 152 amends the definition of guardian in section 4 of the Family
Violence Protection Act 2008 by inserting the phrase
"an attorney appointed to be responsible for personal matters
under an enduring power of attorney under the Powers of
Attorney Act 2014". This insertion reflects amendments to the
Guardianship and Administration Act 1986 and reflects the
new terminology used in the Bill.
Clause 153 amends sections 30 and 85(2)(a) of the Health Records Act
2001.
Subclause (1) amends section 30 of the Health Records Act
2001 by inserting a new definition of written authority to
include a supportive attorney appointment within the meaning
of the Powers of Attorney Act 2014. Section 30 provides that
an individual may authorise a person to be given access to
health information. This amendment will permit information to
be shared with a supportive attorney under a supportive attorney
appointment as permitted in section 30 of the Health Records
Act 2001.
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Subclause (2) amends section 85(2)(a) of the Health Records
Act 2001 by inserting the phrase "a supportive attorney acting
under a supportive attorney appointment within the meaning of
the Powers of Attorney Act 2014". Section 85 relates to the
capacity of a person to give consent, make a request or exercise
a right of access to health information. This amendment will
permit a supportive attorney under a supportive attorney
appointment to request access to health information as
permitted in section 85 of the Health Records Act 2001.
Clause 154 amends section 21 of the Human Services (Complex Needs)
Act 2009 by inserting a new paragraph (b) to including a
reference to an attorney responsible for personal matters under
an enduring power of attorney. This amendment reflects
amendments to the Guardianship and Administration Act
1986 and reflects the new terminology used in the Bill.
Clause 155 amends section 64(2)(a) of the Information Privacy Act 2000.
Section 64(2)(a) of the Information Privacy Act 2000 is
amended by inserting "a supportive attorney acting under a
supportive attorney appointment within the meaning of the
Powers of Attorney Act 2014". Section 64 relates to the
capacity of a person to give consent, make a request or exercise
a right of access to personal information. This amendment will
permit a supportive attorney under a supportive attorney
appointment to request access to personal information as
permitted in section 64 of the Information Privacy Act 2000.
Clause 156 amends section 5A(4) of the Medical Treatment Act 1988 by
replacing the reference to "general power of attorney" with a
reference to "general non-enduring power of attorney (within
the meaning of Powers of Attorney Act 2014)". This reflects
the new terminology used in the Bill.
Clause 157 repeals clause 6(2) of Part II of Schedule 1 to the Melbourne
Market Authority Act 1977. This amendment will remove an
outdated reference to revocation of a non-enduring power of
attorney, which will be left to the common law for consistency
with provisions relating to non-enduring powers of attorney
under the Bill.
Clause 158 amends section 75(1)(d) of the Mental Health Act 2014 by
replacing the phrase "as an enduring guardian within the
meaning of the Guardianship and Administration Act 1986
with "as an attorney under an enduring power of attorney under
64
the Powers of Attorney Act 2014". This reflects amendments
to the Guardianship and Administration Act 1986 and the
new terminology used in the Bill.
Clause 159 amends the definition of guardian in section 4 of the Personal
Safety Intervention Orders Act 2010 by inserting a new
reference to "an attorney appointed to be responsible for
personal matters under an enduring power of attorney under the
Powers of Attorney Act 2014". This insertion reflects
amendments to the Guardianship and Administration Act
1986 and reflects the new terminology used in the Bill.
Clause 160 repeals clause 6(2) of Part II of Schedule 1 to the State
Electricity Commission Act 1958. This amendment will
remove an outdated reference to revocation of a non-enduring
power of attorney, which will be left to the common law for
consistency with provisions relating to non-enduring powers of
attorney under the Bill.
Clause 161 amends sections 3(1) and 39(4) of the Supported Residential
Services (Private Proprietors) Act 2010.
Subclause (1) clarifies the reference to "enduring powers of
attorney" in paragraph (a) of the definition of resident's
administrator in section 3(1) of the Supported Residential
Services (Private Proprietors) Act 2010 to reflect the new
terminology used in the Bill.
Subclause (2) inserts a new paragraph (b) in the definition of
resident's guardian in section 3(1) of the Supported
Residential Services (Private Proprietors) Act 2010, to add a
reference to an attorney for personal matters under an enduring
power of attorney to the definition. This insertion reflects
amendments to the Guardianship and Administration Act
1986 and reflects the new terminology used in the Bill.
Clause 162 amends the example at the foot of section 61D(1)of the
Transport Accident Act 1986 by substituting the phrase "a
general or" with "general non-enduring power of attorney or
an". This insertion reflects the new terminology used in the
Bill.
Clause 163 amends section 35(2) of the Trustee Act 1958.
Subclause (1) amends paragraph (c) of the proviso to
section 35(2) of the Trustee Act 1958 to clarify that the
provision applies to those powers of attorney that were filed
65
under the Instruments Act 1958 (as in force before the
commencement of the Instruments (Powers of Attorney) Act
1980).
Subclause (2) inserts a new subsection after section 35(2) of the
Trustee Act 1958 which provides that the term "power of
attorney", when used in the section, means a power of attorney
that was made and registered under the Instruments Act 1958
as in force before the commencement of the Instruments
(Powers of Attorney) Act 1980.
The Instruments (Powers of Attorney) Act 1980 repealed the
registration provisions for powers of attorney. The provisions
in the section 35 of the Trustee Act 1958 are referring to a
register that existed prior to the 1980 amendment act.
The amendment allows the reference to powers of attorney
in section 35(2) to continue to apply to powers of attorney that
were made and registered under the Instruments Act 1958
before 1980.
Clause 164 repeals Part 12 of Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998. This Part is repealed as it
deals with Part XIA of the Instruments Act 1958, which is
repealed by this Act.
Clause 165 amends Schedule 1 of the Victorian Civil and Administrative
Tribunal Act 1998 by inserting a new Part 15AD into
Schedule 1. The new Part 15AD replaces Part 12 of the
Schedule 1 to the Victorian Civil and Administrative
Tribunal Act 1998 as it refers to the provisions of the Bill.
66