Powers of Attorney and Agency Act 1984

This Act may be cited as the Powers of Attorney and Agency Act 1984.

In this Act—

enduring power of attorney means an enduring power of attorney created pursuant to section 6.

Subject to section 14, this Act applies in relation to a power of attorney, or any other power to act as an agent, of which the law of this State is the proper law, or which arises by virtue of a transaction of which the law of this State is the proper law.

A general power of attorney may be created by deed in the form set out in Schedule 1 or in a form to the same effect but expressed to be made in pursuance of this section.

The authority conferred by a general power of attorney may be expressed to be subject to specified conditions, limitations or exclusions.

Subject to subsection (4) and any conditions, limitations or exclusions to which it is expressed to be subject, a general power of attorney operates to confer—

on the donee of the power; or

where there is more than one donee, on the donees acting jointly or severally, as the case may be, authority to do on behalf of the donor anything that he can lawfully do by an attorney.

A general power of attorney does not operate to confer authority to perform functions that the donor has as a trustee or personal representative.

An enduring power of attorney may be created—

by deed expressed to be made in pursuance of this section; or

by deed containing words indicating an intention that the authority conferred is to be exercised—

notwithstanding the donor's subsequent legal incapacity; or

in the event of the donor's subsequent legal incapacity.

A deed is not effective to create an enduring power of attorney unless—

the attesting witness to the deed, or, where there is more than one attesting witness, at least one of them, is a person authorised by law to take affidavits; and

the deed has endorsed on it, or annexed to it, a statement of acceptance in the form set out in Schedule 2, or in a form to the same effect, executed by the person appointed to be the donee of the power.

An act done by the donee of an enduring power of attorney in pursuance of the power during a period of legal incapacity of the donor of the power is as effective as if the donor were competent and not incapacitated.

The donee of an enduring power of attorney must, during any period of legal incapacity of the donor, exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, shall be liable to compensate the donor for loss occasioned by the failure.

The donee of an enduring power of attorney shall, if he fails to keep and preserve accurate records and accounts of all dealings and transactions made in pursuance of the power, be guilty of an offence and liable to a penalty (recoverable summarily) of an amount not exceeding one thousand dollars.

The donee of an enduring power of attorney may not renounce the power during any period of legal incapacity of the donor except with the permission of the Supreme Court.

Where the administration of the estate or a part of the estate of the donor of an enduring power of attorney is vested in another person as committee, administrator under the Mental Health Act 1977 or manager under the Aged and Infirm Persons' Property Act 1940—

the donee of the power is accountable to the other person as if the other person where the donor of the power; and

the other person has the same power to vary or revoke the power as the donor would have if he were competent and not incapacitated.

Any person who has, in the opinion of the Supreme Court, a proper interest in the matter may, at any time, apply to the Supreme Court for an order—

requiring the donee (or former donee) of an enduring power of attorney to file in the Supreme Court and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in pursuance of the power; or

requiring such records and accounts to be audited by an auditor appointed by the Supreme Court and requiring a copy of the report of the auditor to be furnished to the Supreme Court and the applicant for the order; or

revoking or varying the terms of an enduring power of attorney or appointing a substitute donee of such a power.

The donee of an enduring power of attorney may apply to the Supreme Court—

for an order referred to in subsection (1)(c); or

for advice and direction as to matters connected with the exercise of the power or the construction of its terms.

The Supreme Court has, upon an application under this section, jurisdiction—

to make an order referred to in subsection (1); or

to make such other order (declaratory or otherwise) as to the exercise of the power, or the construction of its terms, as the Court thinks fit.

An order under this section may be made subject to such terms and conditions as the Supreme Court thinks fit.

Where—

the donor, or former donor, of an enduring power of attorney dies leaving a will; and

the donor or former donor had, while the enduring power of attorney was in force, suffered a period of legal incapacity; and

it appears at the death of the donor or former donor that, in consequence of any exercise of power by the donee of the enduring power of attorney during that period of incapacity, the share of any beneficiary under the will has been affected, the Supreme Court may, on application by any person who has, in the opinion of the Supreme Court, a proper interest in the matter, make such orders as it thinks just to ensure that no beneficiary gains a disproportionate advantage, or suffers a disproportionate disadvantage, of a kind not contemplated by the will, in consequence of the exercise of the donee's powers during the period of legal incapacity of the donor or former donor.

An order made by the Supreme Court under subsection (1) operates and will take effect as if it had been made by a codicil to the will of the donor or former donor executed immediately before his or her death.

The Supreme Court must, on making an order under subsection (1), direct that a certified copy of the order be attached to the grant of probate of the will, or grant of letters of administration with will annexed, and may, for that purpose, require the production of the relevant grant.

An application under this section must be made within six months from the date of the grant in this State of probate of the will or letters of administration unless the Supreme Court, after hearing such of the persons affected as the Supreme Court thinks necessary, extends the time for making the application.

An extension of time granted under subsection (4) may be granted—

on such conditions as the Supreme Court thinks fit; and

whether or not the time for making an application under this section has expired.

An application for extension of time must be made before the final distribution of the estate.

A distribution of any part of the estate made before an application for extension of time will not be disturbed by reason of the application or any order made on the application.

This section does not apply in respect of the will of a deceased person who died before the commencement of this section.

A person who acts in good faith in the purported exercise of authority as an agent after termination of the authority by the death or legal incapacity of the principal does not, by reason of the termination, incur any liability in respect of the act if it was done without knowledge of the principal's death or incapacity.

Where—

a person enters into a transaction in the purported exercise of authority as an agent after termination of the authority by the death or legal incapacity of the principal; and

the other party to the transaction enters into it in good faith and without knowledge of the principal's death or incapacity, the transaction is, as between the principal and the other party, as effective as if the authority had not been terminated by the principal's death or incapacity.

Where probate or letters of administration have been granted to a person as attorney for some other person, this section applies in relation to acts done or transactions entered into by the attorney as if the authority conferred by the grant had been conferred by the power of attorney.

This section applies to an act done or transaction entered into after the commencement of this Act whether the agent's authority was conferred before or after that commencement.

This section does not affect the operation of—

section 160 of the Real Property Act 1886; or

section 35 of the Registration of Deeds Act 1935.