1Purposes

The purposes of this Act are to—

(a)

consolidate and provide for certain aspects of the law relating to powers of attorney, including the following—

(i)

the principles to be applied by persons acting under enduring powers of attorney or under the provisions of this Act relating to enduring powers of attorney; and

(ii)

the powers and duties of attorneys under enduring powers of attorney; and

(iii)

the protection of persons whose affairs are being dealt with under enduring powers of attorney; and

(b)

to provide for the meaning of the capacity of persons to make decisions for matters to which enduring powers of attorney and supportive attorney appointments relate; and

(c)

to provide for the 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; and

(d)

to repeal Parts XI and XIA of the Instruments Act 1958 and Division 5A of Part 4 of the Guardianship and Administration Act 1986; and

(e)

to make related amendments to the Instruments Act 1958, the Guardianship and Administration Act 1986 and other Acts; and

(f)

to provide for related matters.

2Commencement

(1)

Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)

If a provision of this Act does not come into operation before 1 September 2015, it comes into operation on that day.

3Definitions

(1)

In this Act—

accommodation provider, for an individual, means a person who is, in a professional or administrative capacity, directly or indirectly responsible for or involved in the provision of accommodation to the individual;

S. 3(1) def. of administration order amended by No. 13/2019 s. 221(Sch. 1 item 38.1).

administration order has the same meaning as in the Guardianship and Administration Act 2019;

attorney for financial matters, for an enduring power of attorney, means an attorney who has power for financial matters under that enduring power of attorney;

attorney for personal matters, for an enduring power of attorney, means an attorney who has power for personal matters under that enduring power of attorney;

care worker, for an individual, means a person who performs services for the care of the individual and receives remuneration for those services from any source, but does not include—

(a)

a person who receives a carer payment or other benefit from the Commonwealth or a State or a Territory of the Commonwealth for providing home care for the individual; or

(b)

a person who is a health provider;

close friend, for a person, means another person who has a close personal relationship with the first person and a personal interest in the first person's welfare;

domestic partner of a person means—

(a)

a person who is in a registered relationship with the person; or

(b)

an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i)

for fee or reward; or

(ii)

on behalf of another person or an organisation (including a government, a government agency, a body corporate or a charitable or benevolent organisation);

enduring power of attorney means a power of attorney to which section 22 applies;

financial matter, in relation to a principal under an enduring power of attorney, or a supportive attorney appointment, means any matter relating to the principal's financial or property affairs, and includes any legal matter that relates to the financial or property affairs of the principal;

Examples

The following are examples of financial matters—

(a)

making money available to the principal for the principal's personal expenditure;

(b)

paying expenses for the principal and any dependants of the principal relating to the maintenance and accommodation of the principal and any dependants, including purchasing an interest in, or making a contribution to an establishment to accommodate the principal or any dependants of the principal or otherwise making payments in relation to such property;

(c)

paying any debts of the principal, including any fees and expenses to which an attorney is legally entitled;

(d)

receiving and recovering money payable to the principal;

(e)

carrying on any trade or business of the principal;

(f)

performing any contracts entered into by the principal;

(g)

discharging any mortgage over the principal's property;

(h)

paying rates, taxes and insurance premiums or other outgoings for the principal's property;

(i)

insuring the principal or the principal's property;

(j)

otherwise preserving or improving the principal's property;

(k)

making investments for the principal;

(l)

continuing investments 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;

(m)

undertaking any real estate transaction for the principal;

(n)

dealing with land for the principal;

(o)

undertaking a beneficial transaction for the principal involving the use of the principal's property as security for an obligation, including taking out a loan on behalf of the principal or giving a guarantee on behalf of the principal;

(p)

withdrawing money from or depositing money into an account of the principal with a financial institution;

financial services licensee has the same meaning as in section 761A of the Corporations Act;

general non-enduring power of attorney means a non-enduring power of attorney that is made under section 7;

S. 3(1) def. of guardianship order amended by No. 13/2019 s. 221(Sch. 1 item 38.1).

guardianship order has the same meaning as in the Guardianship and Administration Act 2019;

health provider means a person who provides health care in the practice of a profession or in the ordinary course of business;

legal matter, in relation to a principal under an enduring power of attorney, or a supportive attorney appointment, means—

(a)

use of legal services for the principal's benefit; or

(b)

bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the principal, including settling a claim before or after a legal proceeding or hearing starts;

Examples

The following are examples of legal matters—

(a)

the use of legal services to obtain information about the principal's legal rights;

(b)

the use of legal services to make a transaction;

S. 3(1) def. of medical treatment inserted by No. 69/2016 s. 150(a).

medical treatment has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016;

S. 3(1) def. of medical research procedure inserted by No. 69/2016 s. 150(a).

medical research procedure has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016;

nearest relative means the relative first listed in the definition of relative who has attained the age of 18 years, the elder or eldest of two or more relatives described in any paragraph being preferred to any other so described, regardless of sex;

non-enduring power of attorney means a power of attorney that is not an enduring power of attorney;

offence involving dishonesty means an offence that involves dishonesty and that is punishable by at least 3 months' imprisonment, whether it is an offence in this State, the Commonwealth, another State or a Territory of the Commonwealth or a foreign state or country;

S. 3(1) def. of personal matter amended by No. 69/2016 s. 150(b)–(d).

personal matter, in relation to a principal under an enduring power of attorney, or a supportive attorney appointment, means any matter relating to the principal's personal or lifestyle affairs, and includes any legal matter that relates to the principal's personal or lifestyle affairs, but does not include any matter that relates to medical treatment or medical research procedures;

Examples

The following are examples of personal matters—

(a)

where and with whom the principal lives;

(b)

persons with whom the principal associates;

(c)

whether the principal works and, if so, the kind and place of work and employer;

(d)

whether the principal undertakes education or training, the kind of education or training and the place where it takes place;

(e)

daily living issues such as diet and dress.

* * * * *

Note

See the Medical Treatment Planning and Decisions Act 2016 for matters relating to medical treatment and medical research procedures.

principal means—

(a)

for a power of attorney, the person who makes the power of attorney;

(b)

for a supportive attorney appointment, the person who makes the supportive attorney appointment;

S. 3(1) def. of Public Advocate substituted by No. 13/2019 s. 221(Sch. 1 item 38.2).

Public Advocate has the same meaning as in the Guardianship and Administration Act 2019;

purchaser means a purchaser for valuable consideration and includes a lessee, mortgagee or other person who acquires an estate or interest in property for valuable consideration;

relative means any of the following—

(a)

spouse or domestic partner;

(b)

child;

(c)

parent or step-parent;

(d)

sibling or step-sibling;

(e)

grandparent;

(f)

grandchild;

(g)

uncle or aunt;

(h)

nephew or niece;

S. 3(1) def. of remote witnessing procedure inserted by No. 11/2021 s. 89.

remote witnessing procedure means the procedure set out in section 5A;

S. 3(1) def. of special witness inserted by No. 11/2021 s. 89.

special witness means—

(a)

an Australian legal practitioner; or

(b)

a justice of the peace appointed under section 7 of the Honorary Justices Act 2014; or

(c)

a person who is a member of a prescribed class of person;

spouse of a person means a person to whom the person is married;

supportive attorney means a person appointed under a supportive attorney appointment;

supportive attorney appointment means an appointment under section 85;

supportive attorney for financial matters, for a supportive attorney appointment, means a supportive attorney who has power for financial matters under the supportive attorney appointment;

trustee company has the same meaning as in section 4 of the Trustee Companies Act 1984;

valuable consideration does not include a nominal consideration in money.

(2)

For the purposes of the definition of domestic partner in subsection (1)—

(a)

registered relationship has the same meaning as in the Relationships Act 2008; and

(b)

in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of the relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c)

a person is not a domestic partner of another person merely because they are co-tenants.

(3)

A reference in the definition of relative in subsection (1) to a person's sibling includes a reference to an individual who was adopted by one or both of the person's parents.

(4)

In this Act, a reference to signing at the direction of the principal, in relation to the signing of—

(a)

an enduring power of attorney, is a reference to signing the instrument in the presence of and at the direction of the principal under section 33(a)(ii); or

(b)

a revocation of an enduring power of attorney, is a reference to signing the instrument in the presence of and at the direction of the principal under section 46(a)(ii); or

(c)

a supportive attorney appointment, is a reference to signing the form in the presence of and at the direction of the principal under section 95(a)(ii); or

(d)

a revocation of a supportive attorney appointment, is a reference to signing the form in the presence of and at the direction of the principal under section 105(a)(ii).

4Meaning of decision making capacity

(1)

For the purpose of this Act, other than Part 2, a person has capacity to make a decision as to a matter (decision making capacity) if the person is able to—

(a)

understand the information relevant to the decision and the effect of the decision; and

(b)

retain that information to the extent necessary to make the decision; and

(c)

use or weigh that information as part of the process of making the decision; and

(d)

communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

(2)

For the purpose of subsection (1), a person is presumed to have decision making capacity unless there is evidence to the contrary.

(3)

For the purpose of subsection (1)(a), a person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.

(4)

In determining whether or not a person has decision making capacity regard should be had to the following—

(a)

a person may have decision making capacity for some matters and not others;

(b)

if a person does not have decision making capacity for a matter, it may be temporary and not permanent;

(c)

it should not be assumed that a person does not have decision making capacity for a matter on the basis of the person's appearance;

(d)

it should not be assumed that a person does not have decision making capacity for a matter merely because the person makes a decision that is, in the opinion of others, unwise;

(e)

a person has decision making capacity for a matter if it is possible for the person to make a decision in the matter with practicable and appropriate support.

Example

The following are examples of practicable and appropriate support—

(a)

using information or formats tailored to the particular needs of a person; or

(b)

communicating or assisting a person to communicate his or her decision; or

(c)

giving a person additional time and discussing the matter with the person; or

(d)

using technology that alleviates the effects of a person's disability.

(5)

Despite subsection (4)(d), 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.

5Assessing decision making capacity

A person who is assessing whether a person has decision making capacity, 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.

S. 5A inserted by No. 11/2021 s. 90.

5ARemote witnessing procedure

(1)

A power of attorney or other document under this Act that is required to be executed with a witness may be executed in accordance with the remote witnessing procedure set out in this section.

(2)

One of the witnesses must be a special witness and, if more than one witness qualifies as a special witness, only one of the special witnesses is to be the special witness if the document being executed is—

(a)

an enduring power of attorney under section 33; or

(b)

an instrument of revocation under section 46; or

(c)

a supportive attorney appointment under section 95; or

(d)

a form of revocation under section 105.

(3)

All elements of the remote witnessing procedure must be carried out on the same day and within Victoria.

(4)

The principal must either—

(a)

sign the power of attorney or other document with any required witnesses clearly seeing that signature being made by audio visual link or a combination of physical presence and audio visual link; or

(b)

if permitted, direct another person (the substitute signatory) to sign the power of attorney or other document with any required witnesses clearly seeing and hearing the direction of the principal to the substitute signatory and all witnesses and the principal clearly seeing the substitute signatory's signature being made on behalf of the principal by audio visual link or a combination of physical presence and audio visual link.

(5)

Subject to subsection (6), any witness who is physically present with the principal then signs the power of attorney or other document in accordance with the requirements for witnesses under this Act.

(6)

If a special witness is required, that witness must sign the document last regardless of whether the special witness is physically present.

(7)

In addition to any other requirements under this Act, the power of attorney or other document is then transmitted by electronic communication to any witness attending by audio visual link who must—

(a)

be reasonably satisfied that the document which the witness is to sign is the same document that the principal (or the substitute signatory on behalf of the principal) signed; and

(b)

certify on the power of attorney or other document a statement that the witness witnessed the power of attorney or other document by audio visual link in accordance with the remote witnessing procedure; and

(c)

sign and date the power of attorney or other document in the presence by audio visual link of the principal and other witnesses; and

(d)

if the witness is the special witness, in addition to complying with paragraphs (a) to (c), the special witness must check the power of attorney or other document for compliance with the remote witnessing procedure and certify on the power of attorney or other document—

(i)

that the power of attorney or other document was signed and witnessed in accordance with the remote witnessing procedure; and

(ii)

that the person making the certification is a special witness and what type of special witness the person is; and

(iii)

whether an audio visual recording was made of the signing or witnessing of the power of attorney or other document by the remote witnessing procedure.

(8)

For the purposes of subsections (4), (5) and (7), principal includes an attorney under section 37, an alternative attorney under section 38, a supportive attorney under section 99 and an alternative supportive attorney under section 100.

S. 5B inserted by No. 11/2021 s. 90.

5BWhich document is the power of attorney or other document?

(1)

If a power of attorney or other document is executed in accordance with the remote witnessing procedure and requires a special witness, the document which has been certified by the special witness in accordance with section 5A(7) is the valid power of attorney or other document.

(2)

If a power of attorney or other document is executed in accordance with the remote witnessing procedure and does not require a special witness, the document which contains the principal's signature (or the signature of the substitute signatory on behalf of the principal) and all the witness signatures is the valid power of attorney or other document.

(3)

The place of execution of a power of attorney or other document executed or signed in accordance with the remote witnessing procedure is the place where the principal is located at the time the power of attorney or other document is executed or signed.

(4)

Counterpart documents do not constitute a valid power of attorney or other document.

S. 5C inserted by No. 11/2021 s. 90.

5CRecording of remote witnessing procedure

(1)

An audio visual recording of the execution or signing of a power of attorney or other document by remote witnessing procedure may be made only if all of the parties to the procedure consent to a recording being made.

(2)

The making of a recording or the failure to make a recording referred to in subsection (1) does not affect the validity of the power of attorney or other document executed or signed by the remote witnessing procedure or the use of that procedure.

S. 5D inserted by No. 11/2021 s. 90.

5DRemote witnessing procedure does not limit other duties and obligations

(1)

The use of the remote witnessing procedure applies in addition to any other duty or obligation under any Act (including any Commonwealth Act) or at common law applying to a person as a principal or witness to a power of attorney or other document.

(2)

The use of the remote witnessing procedure does not limit any requirement imposed by this Act by which a person must not write or do something without first being satisfied of certain matters.

Example

Sections 36, 49 and 98 impose certain certification requirements.

6Definitions

In this Part—

statutory owner has the same meaning as in the Settled Land Act 1958;

tenant for life has the same meaning as in the Settled Land Act 1958;

trustee includes a tenant for life and a statutory owner.

7General non-enduring power of attorney

(1)

A general non-enduring power of attorney that is in or to the effect of the form in the Schedule has the effect of giving the attorney under the power authority to do anything on behalf of the principal that a principal can lawfully do by an attorney.

(2)

A general non-enduring power of attorney that is in or to the effect of the form in the Schedule does not have the effect—

(a)

of empowering the attorney to delegate a power under the power of attorney, unless so specified in the power of attorney; and

(b)

of delegating to the attorney the execution or exercise of any trust, power or discretion vested in the principal as trustee (whether alone or jointly with any other person or persons).

8Appointment of more than one attorney

(1)

A principal under a general non-enduring power of attorney may appoint more than one person as attorneys under the power.

(2)

If more than one attorney is appointed under the power—

(a)

the principal may appoint the attorneys to act jointly or jointly and severally; or

(b)

if the principal does not specify how the attorneys are appointed, the attorneys are taken to be appointed to act jointly.

Powers of Attorney Act 2014

About this Act

Regulations and instruments made under this Act

Bill & explanatory material

This Act’s bill