Powers of Attorney Act 2000

Powers of Attorney Act 2000

This Act may be cited as the Powers of Attorney Act 2000.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears – attorney means a person to whom a power of attorney is given; certified copy, in the case of a power of attorney or print-out, means a copy of that power of attorney as registered or print-out that – is certified by the Recorder to be a copy of the power of attorney or print-out; or in the case of a copy created by a facsimile or electronic transmission process, has recorded on it by that process an indication that the transmission creating the copy was initiated in an office of the Recorder and a record of the time and date of the transmission; close relative, in relation to a person, means – a spouse of the person; and a parent of the person; and a person who has one or both parents in common with the person; and a child of the person; and a child of, or a parent of, the spouse of the person; and a grandparent of the person; and an aunt or uncle of the person; computer means any device for storing or processing information;Court means the Supreme Court; donor means a person who grants a power of attorney; enduring power of attorney means an enduring power of attorney created under section 30; instrument includes registration application; machine copy, in relation to a document that is a power of attorney, means a copy of the document made by – a machine in which, or a process by which, a latent image of the contents of the document is produced from surface contact with the document or by the use of photosensitive material other than transparent photographic film; or the electrostatic process known as Xerography or any similar process; photocopying process, in the case of a copy of a power of attorney, means the process of making a photographic copy or machine copy of the power of attorney; photographic copy, in the case of a power of attorney, means a print made from a transparency of the power of attorney; prescribed, in relation to a fee, means prescribed in Schedule 2; print-out, in the case of a computer, means the output of that computer produced in a form that can be understood by sight;Recorder means the Recorder of Titles; register means the register of powers of attorney kept under section 4; registration application means a registration application in accordance with form 5; repealed Act means the Powers of Attorney Act 1934; spouse, in relation to a person, means a person – who is married to the person; or who is a party to a significant relationship, within the meaning of the Relationships Act 2003, with the person, which relationship is registered under that Act; or who is a party to a significant relationship, within the meaning of the Relationships Act 2003, with the person, which relationship has been in existence for a continuous period of at least 2 years; transparency, in relation to a document that is a power of attorney, means – a developed negative or positive photograph of that document (in this definition referred to as an original photograph) made on a transparent base by means of light reflected from, or transmitted through, the document; or a copy of an original photograph made by the use of photosensitive material on a transparent base placed in surface contact with the original photograph; or any one of a series of copies of an original photograph, the first of the series being made by the use of photosensitive material on a transparent base placed in surface contact with a copy referred to in paragraph (b), and each succeeding copy in the series being made in the same manner from any preceding copy in the series;Tribunal means the Tasmanian Civil and Administrative Tribunal.

In this Act, a reference to a form is a reference to a form specified in Schedule 1.

The Recorder must keep a register of all powers of attorney.

The register consists of copies of all powers of attorney, instruments varying or revoking a power of attorney and other instruments relating to powers of attorney that are lodged with the Recorder under this Act.

The register may be kept wholly or partly – on paper, microfilm, magnetic tape, magnetic disk, optical disk or any combination of those media or in or on such other medium as may be approved by the Recorder; or in such device for storing or processing information as may be approved by the Recorder – and the Recorder may at any time rearrange the register or change any such medium or device accordingly.

The Recorder may include in the register a copy of any power of attorney that, immediately before the commencement of this Act, is registered under the Registration of Deeds Act 1935.

For the purposes of this section, a copy of a power of attorney, instrument varying or revoking a power of attorney or any other instrument relating to powers of attorney is to be made by a process approved by the Recorder.

The following records are public records:the register; powers of attorney and other instruments lodged under this Act for registration; any index of unregistered dealings kept in the office of the Recorder; a copy of an order referred to in section 33(2).

Any information in a public record is available as may be approved by the Recorder and on payment of such fee, if any, as may be prescribed.

The Recorder must, on application and payment of the prescribed fee, furnish a person with a certified copy of any part of the register.

A copy for the purposes of this section may be – in writing; or made by such photocopying, facsimile or electronic transmission process as the Recorder determines; or made partly in accordance with paragraph (a) and partly in accordance with paragraph (b).

The Recorder may, with the written permission of the State Archivist given in accordance with section 20(2)(b) of the Archives Act 1983, sell, destroy or otherwise dispose of any document or any class of document in the possession of the Recorder which the Recorder considers to be of no value for the purposes of the register.

Before selling or disposing of a document, the Recorder must mark it as no longer valid.

The Recorder is taken to be a Head of Agency for the purpose of the application of section 8 of the Archives Act 1983 to the Recorder's powers under this section.

A power of attorney made or created under section 18 or 30 must – not have more than one donor; and be signed by the donor with that signature attested by the signature of – in the case of an enduring power of attorney, two witnesses neither of whom is a party to it nor a close relative of a party to it and each of whom has witnessed it in the presence of the donor and each other; or in the case of any other power of attorney, a witness who is not a party to it and who witnesses it in the presence of the donor; and in the case of an enduring power of attorney, include a declaration by each witness that he or she is neither a party to the enduring power of attorney nor a close relative of a party to it; and comply with this Act; and be legible; and be capable of producing a legible copy by a process approved by the Recorder; and contain any matter that is intended to be in addition to, or to be inserted in and form part of, a power of attorney in a page of that power of attorney or in the form of an annexure; and be on A4-size paper; and if it consists of more than one page, have each page consecutively numbered and be stapled or pinned in the top left hand corner; and be accompanied by a registration application; and include or be accompanied by any information or document required by the Recorder.

An annexure to a power of attorney must – be in the same size and form as the power of attorney; and be referred to in the power of attorney; and contain identification that it is the annexure to the power of attorney; and subject to subsection (3), be signed by the parties to the power of attorney or, where the party is a body corporate, by the persons who have attested the affixing of the seal of that body corporate to the power of attorney; and comply with this Act.

If one of the parties to a power of attorney is a body corporate that is not required by law to affix its seal to the power of attorney, an annexure to the power of attorney is to be signed by any person who is authorised by law to execute the power of attorney.

An alteration to a power of attorney or annexure – is to be made by striking through the word or words intended to be altered so as not to render illegible the original word or words; and is to be initialled by the donor and the attorney.

The initialling by the donor of an alteration to a power of attorney or annexure is to be witnessed – in the case of an enduring power of attorney or annexure to such a power of attorney, by two witnesses neither of whom is a party to it nor a close relative of a party to it and each of whom has witnessed it in the presence of the donor and each other; or in the case of any other power of attorney or annexure to such a power of attorney, by a witness who is not a party to it and who witnesses it in the presence of the donor.

A witness to the initialling of an alteration to a power of attorney or annexure may be the same person as, or a different person to, the person who witnessed the power of attorney or annexure.

A person who is to be the attorney in respect of an enduring power of attorney, or who knows he or she is a close relative of a party to an enduring power of attorney, must not act as a witness to – the signature of the enduring power of attorney by the donor; or the initialling by the donor of an alteration to the enduring power of attorney or to an annexure to the enduring power of attorney. Fine not exceeding 2 penalty units.

Subject to this section, section 9 applies as far as relevant – to an instrument that refers to a power of attorney, other than an instrument referred to in section 32A; and to an annexure to such an instrument.

An instrument that refers to a power of attorney, including an instrument referred to in section 32A, must clearly identify the power of attorney by reference to – the name of the donor; and the name of the attorney; and the date on which it was executed; and the distinctive number or other means of identification given under section 12(2).

Where an instrument that refers to a power of attorney is required to be signed by the donor, it is sufficient if it is signed by the donor's personal representative with a statement as to how and in what capacity he or she has been appointed to act.

The Recorder must not register any power of attorney or other instrument under this Act unless it – complies with this Act; and is accompanied by a registration application.

For the purposes of this section, the Recorder is not required to examine a power of attorney or other instrument unless to ensure that it is in accordance with the forms and procedures provided by this Act.

If a power of attorney or other instrument is lodged with the Recorder under this Act for registration and does not comply with this Act, the Recorder must – refuse to register the power of attorney or other instrument and return it to the person who lodged it; or return the power of attorney or other instrument to the person who lodged it with a notice notifying him or her that the Recorder will refuse to register the power of attorney or other instrument unless the specified corrections are made.

Where corrections are to be made as mentioned in subsection (3) – the Recorder may refuse registration of the corrected power of attorney or other instrument if the corrections are not made within 60 days after notice under subsection (3)(b) was given, or within such further time as the Recorder may allow; and the corrections are to be initialled by the donor and attorney.

The initialling of corrections to a power of attorney or other instrument by the donor under subsection (4)(b) is to be witnessed – in the case of an enduring power of attorney, by two witnesses neither of whom is a party to it nor a close relative of a party to it and each of whom has witnessed it in the presence of the donor and each other; or in the case of any other power of attorney, a witness who is not a party to it and who witnesses it in the presence of the donor.

A witness to the initialling of corrections to a power of attorney or other instrument may be the same person as, or a different person to, the person who witnessed the power of attorney or other instrument.

Where the Recorder refuses to register a power of attorney or other instrument, he or she shall notify the person by whom the power of attorney or other instrument was lodged or that person's agent of his or her refusal, and may retain one-half of the fees paid in relation to the lodging of the power of attorney or other instrument.

Despite any provision of this Act to the contrary, the Recorder may accept for registration a power of attorney, annexure or alteration to a power of attorney that does not comply with this Act if the Recorder considers it appropriate to do so in the particular circumstances.

All fees retained by the Recorder in accordance with subsection (5) are to be paid into the Public Account.

The Recorder is not personally liable for any damage or loss caused to a person by, or as a consequence of, the registration under this Act of – a purported enduring power of attorney signed by a witness who is a party to, or a close relative to a party to, the enduring power of attorney; or an annexure to an enduring power of attorney, or purported enduring power of attorney, which annexure is signed by a witness who is a party to, or a close relative to a party to, the enduring power of attorney; or an alteration or correction made to – an enduring power of attorney or a purported enduring power of attorney; or an annexure to an enduring power of attorney or purported enduring power of attorney – which alteration or correction is signed by a witness who is a party to, or a close relative to a party to, the enduring power of attorney.

A power of attorney or other instrument under this Act may be lodged with the Recorder – by delivery of the original document; or if so authorised by the Recorder, by transmission to the Recorder of a copy of the original document – as a transparency or print from a transparency or from a machine copy; or by facsimile process; or in any other manner approved by the Recorder; or by the preparation and lodgment of the power of attorney or other instrument in any form otherwise than as a document – by any device used for the storage or transmission or processing of information approved by the Recorder; or in any other manner approved by the Recorder.

On lodgment of a power of attorney or other instrument, the Recorder must – identify the power of attorney or other instrument by endorsing on it a distinctive number, a distinctive letter and number or any other identifying procedure; and take a copy of the endorsed power of attorney or other instrument; and return the endorsed power of attorney or other instrument to the person who lodged it.

A power of attorney or other instrument is taken to be registered – if the register is kept in paper form, by a notation on the copy of the power of attorney that it has been registered; or if the register is kept on microfilm, by any other medium approved by the Recorder or in such device for storing or processing information as may be so approved, by the Recorder making a notation appropriate to that medium or device that the power of attorney or other instrument has been so registered.

A notation of registration is to record the date and time when a power of attorney or other instrument is registered.