Powers of Attorney Act 2003

This Act is the Powers of Attorney Act 2003.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

assurance includes a conveyance and a disposition made otherwise than by will.

attorney, in relation to a power of attorney, means a person to whom the power is given.

bankruptcy means any act or proceeding in law having effects or results similar to those of bankruptcy, and includes the winding up of a company under the Corporations Act 2001 of the Commonwealth.

conveyance includes any assignment, appointment, lease, settlement or other assurance by deed of any property.

dealing has the same meaning as it has in the Real Property Act 1900.

deed, in relation to land under the provisions of the Real Property Act 1900, includes a dealing having the effect of a deed under that Act.

disposition includes—

a conveyance, and

an acknowledgment under section 83 of the Probate and Administration Act 1898, and

a vesting instrument, declaration of trust, disclaimer, release and every other assurance of property by any instrument except a will, and

a release, devise, bequest or an appointment of property contained in a will.

enduring power of attorney—see section 19 (1).

exercise a function includes perform a duty.

function includes a power, authority or duty.

incommunicate—see section 4.

instrument includes a deed.

irrevocable power of attorney—see section 15.

prescribed power of attorney—see section 8.

principal, in relation to a power of attorney, means the person giving the power.

property includes—

real and personal property, and

any estate or interest in any real or personal property, and

any debt, thing in action or other right or interest.

registered means registered as referred to in section 51.

review tribunal—see section 26.

third party, in relation to a power of attorney, means a person other than the principal or an attorney on which a power is conferred by the power of attorney.

vacancy in office of an attorney—see section 5.

valuable consideration includes marriage but does not include a nominal consideration, even if it has some value.

will includes codicil.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A power of attorney does not become a different power of attorney if an attorney appointed by the power is lawfully replaced by a different attorney, the exercise of a power conferred by it is lawfully delegated or a sub-attorney is lawfully appointed to exercise a power under it.

A reference in this Act to a suspended power of attorney is a reference to a power of attorney that is—

suspended or restricted in operation by reason of mental incapacity of the principal occurring after the execution of the instrument creating the power, or

suspended by operation of section 50.

Notes included in this Act do not form part of this Act.

Note.

For the purposes of comparison, a number of provisions of this Act contain bracketed notes in headings drawing attention (“cf”) to equivalent or comparable (though not necessarily identical) provisions of other Acts. Abbreviations in the notes include—

1919 No 6: Conveyancing Act 1919 (as in force immediately before the enactment of this Act),

1983 No 179: Protected Estates Act 1983 (as in force immediately before the enactment of this Act).

For the purposes of this Act, a person is incommunicate if—

the person suffers from any physical or mental incapacity (whether of a temporary or permanent nature) that makes the person unable—

to understand communications respecting the person’s property or affairs, or

to express the person’s intentions respecting the person’s property or affairs, or

the person is unable to receive communications respecting the person’s property or affairs because the person cannot be located or contacted.

Without limiting subsection (1) (a), a person may be incommunicate even if the incapacity concerned is induced by any drug or by medical or other treatment.

For the purposes of this Act, there is a vacancy in the office of an attorney if—

the appointment of the attorney is revoked, or

the attorney renounces the power, or

the attorney dies, or

the attorney becomes bankrupt, or

where the attorney is a corporation, the corporation is dissolved, or

the attorney, by reason of any physical or mental incapacity, ceases to have the capacity to continue to act as an attorney, or

in such other circumstances as may be prescribed by the regulations for the purposes of this paragraph.

Act applies to instruments executed on or after commencement This Act applies to any power of attorney created (or purporting to have been created) by an instrument executed on or after the commencement of this section.

Act does not generally apply to existing powers of attorney This Act does not apply to any power of attorney created (or purporting to have been created) by an instrument executed before the commencement of this section, except as provided by subsection (5).

Repealed provisions of Conveyancing Act 1919 continue to apply to existing powers of attorney Subject to subsection (5), the provisions of Part 16 of, and Schedule 7 to, the Conveyancing Act 1919 (and of any regulations made under those provisions) as in force immediately before the commencement of this section continue to apply to any power of attorney created (or purporting to have been created) by an instrument executed before that commencement despite the repeal of those provisions by this Act.

Schedule 1 contains copy of repealed provisions of Conveyancing Act 1919 Schedule 1 contains a copy of the provisions of Part 16 of, and Schedule 7 to, the Conveyancing Act 1919 as in force immediately before the commencement of this section.

Note.

The copy of the provisions of Part 16 of, and Schedule 7 to, the Conveyancing Act 1919 contained in Schedule 1 does not include the definitions for certain terms used in those provisions that are contained in section 7 of the Conveyancing Act 1919. The regulations made under those provisions have also not been included in the Schedule.

Certain provisions of this Act extend to existing powers of attorney The provisions of section 25 (Recognition of enduring powers of attorney made in other States and Territories), Part 5 (Review of powers of attorney) and Division 3 of Part 6 (Registration of powers of attorney) extend to any power of attorney created (or purporting to have been created) by an instrument executed before the commencement of this section.

Certain references in Part 5 extended to existing powers of attorney For the purposes of subsection (5)—

a reference in Part 5 to an enduring power of attorney is taken to include a reference to a power of attorney that was a protected power of attorney under Part 16 of the Conveyancing Act 1919 immediately before its repeal, and

a reference in Part 5 to an irrevocable power of attorney is taken to include a reference to a power of attorney to which section 160 of the Conveyancing Act 1919 applied immediately before its repeal.

Subsection (5) does not affect current proceedings Nothing in subsection (5) affects the continued operation of the provisions of the Conveyancing Act 1919 and regulations made under that Act (as continued in force by subsection (3)) in relation to any proceedings commenced, but not finally determined, under those provisions before the commencement of this section.

This Act does not affect the operation of any principle or rule of the common law or equity in relation to powers of attorney except to the extent that this Act provides otherwise, whether expressly or by necessary intention.

This Act does not affect the operation of Part 3 of the Conveyancing Act 1919 except to the extent that this Act provides otherwise, whether expressly or by necessary intention.

Note.

Part 3 of the Conveyancing Act 1919 contains general provisions relating to the execution and effect of deeds.

An instrument (whether or not under seal) that is in or to the effect of a form prescribed by the regulations for the purposes of this section and is duly executed creates a prescribed power of attorney for the purposes of this Act.

Subject to this Act, a prescribed power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do.

A prescribed power of attorney has effect subject to compliance with any conditions or limitations specified in the instrument creating the power.

A prescribed power of attorney does not confer authority to exercise any function as a trustee that is conferred or imposed on the principal.

A prescribed power of attorney does not authorise an attorney to give a gift of all or any property of the principal to any other person unless the instrument creating the power expressly authorises the giving of the gift.

Note.

This subsection restates a rule of the general law. Accordingly, whether a gift of all or any of the property of a principal is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney.

Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to give the kinds of gifts that are specified by that Schedule for that expression.

A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the attorney unless the instrument creating the power expressly authorises the conferral of the benefit.

Note.

This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on an attorney is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney.

Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to confer on the attorney the kinds of benefits that are specified by that Schedule for that expression.