Powers of Attorney Act 2006

This Act is the Powers of Attorney Act 2006.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘decision-making capacity—see section 9 (1).’ means that the term ‘decision-making capacity’ is defined in that subsection.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Chapter 2 General overview and important concepts

An attorney is a person who is authorised under a power of attorney to make decisions and do particular other things for the person (the principal) who made the power of attorney.

A general power of attorney is a power of attorney under this Act that operates only while the principal has decision-making capacity.

An enduring power of attorney is a power of attorney under this Act that is not revoked by the principal becoming a person with impaired decision-making capacity.

Note An enduring power of attorney operates as a general power of attorney in relation to property matters while the principal has decision-making capacity (see s 31).

For this Act, a person has decision-making capacity if the person can make decisions in relation to the person’s affairs and understands the nature and effect of the decisions.

For this Act, a person has impaired decision-making capacity if the person cannot make decisions in relation to the person’s affairs or does not understand the nature or effect of the decisions the person makes in relation to the person’s affairs.

Note 1 A person is not taken to have impaired decision-making capacity only because of certain attributes or behaviours (see s 91).

Note 2 For the criteria to work out if a person understands the nature and effect of making an enduring power of attorney, see s 17.

In this Act:

property matter, for a principal, means a matter relating to the principal’s property.

Examples of property matters a power of attorney may deal with

1 paying maintenance and accommodation expenses for the principal and the principal’s dependants

2 paying the principal’s debts and expenses

3 receiving and recovering amounts payable to the principal

4 carrying on the principal’s trade or business

5 performing contracts entered into by the principal

6 discharging a mortgage over the principal’s property

7 paying rates, taxes and other outgoings for the principal’s property

8 insuring the principal or the principal’s property

9 preserving or improving the principal’s estate

10 investing in authorised investments for the principal

11 continuing investments of the principal, including taking up rights to share issues, or options for new shares, to which the principal becomes entitled because of the principal’s shareholding

12 undertaking transactions for the principal involving the use of the principal’s property as security for the benefit of the principal

13 undertaking a real estate transaction for the principal

14 dealing with land under the Land Titles Act 1925 for the principal

15 withdrawing amounts from, or depositing amounts into, an account of the principal held with an authorised deposit-taking institution

16 legal matters in relation to the principal’s finances and property

In this Act:

personal care matter, for a principal, means a matter, other than a health care matter, special personal matter, special health care matter or medical research matter relating to the principal’s personal care, including the principal’s welfare.

Examples of personal care matters a power of attorney may deal with

1 where the principal lives

2 who the principal lives with

3 whether the principal works and, if the principal works, where and how the principal works

4 what education or training the principal gets

5 whether the principal applies for a licence or permit

6 the principal’s daily dress and diet

7 whether to consent to a forensic examination of the principal

8 whether the principal will go on holiday and where

9 legal matters relating to the principal’s personal care

Note Special personal matter—see s 36. Special health care matter—see s 37.

In this Act:

health care matter, for a principal, means a matter, other than a special health care matter or medical research matter, relating to the principal’s health care.

Examples of health care matters a power of attorney may deal with

1 consenting to lawful medical treatment necessary for the principal’s wellbeing

2 donations (other than donations of non-regenerative tissue) under the Transplantation and Anatomy Act 1978 by the principal to someone else

3 withholding or withdrawal of medical treatment for the principal

4 legal matters relating to the principal’s health care

5 consenting to treatment for a mental illness (other than electroconvulsive therapy or psychiatric surgery) necessary for the principal’s wellbeing

Note Special health care matter—see s 37.

In this Act:

medical research matter, for a principal, means a matter relating to the principal’s participation in—

medical research; or

low-risk research.

Note The power given to an attorney under an enduring power of attorney in relation to medical research matters must be exercised in accordance with pt 4.3A (Medical research matters).

In this section:

low-risk research, in relation to a person—see section 41A.

medical research, in relation to a person—see section 41A.

Chapter 3 How to appoint an attorney

Part 3.1 What the principal needs to do