Powers of Attorney Act 1998

An Act consolidating, amending and reforming the law about general powers of attorney and enduring powers of attorney and providing for advance health directives, and for other purposes

1Short title

This Act may be cited as the Powers of Attorney Act 1998.

2Commencement

This Act commences on a day to be fixed by proclamation.

3Dictionary

The dictionary in schedule 3 defines particular words used in this Act.

4Act binds all persons

This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.

5General overview

(1)An attorney is a person who is authorised to make particular decisions and do particular other things for another person (the principal).

(2)After the commencement of this Act, principals may authorise attorneys by—

(a)general powers of attorney, enduring powers of attorney or advance health directives; or

(b)powers of attorney under the common law.

(3)In addition to replacing the statutory provisions for powers of attorney and enduring powers of attorney, this Act introduces advance health directives and statutory health attorneys.

Note—

The Property Law Act 1974, part 9 (Powers of attorney) was repealed by section 182.

However, see section 163 (Powers of attorney under Property Law Act 1974) for a transitional provision.

(4)An advance health directive is a document containing directions for a principal’s future health care and special health care and may authorise an attorney to do particular things for the principal in relation to health care.

Note—

Advance health directives are dealt with in chapter 3.

(5)A statutory health attorney is the person authorised by this Act to do particular things for a principal in particular circumstances in relation to health care.

Note—

See section 62 (Statutory health attorney).

Also, see the Guardianship and Administration Act 2000, section 66(5) (Adult with impaired capacity—order of priority in dealing with health matter).

s 5 amd 2000 No. 8 s 263 sch 3

6Scope of Act

Except where otherwise provided, this Act applies only to documents made, whether under this Act or otherwise, after the commencement of this Act.

Note—

A general power of attorney, or enduring power of attorney, made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be a general power of attorney, or enduring power of attorney, made under this Act—section 163.

6ARelationship with Guardianship and Administration Act 2000

(1)This Act is to be read in conjunction with the Guardianship and Administration Act 2000 which provides a scheme by which—

(a)the tribunal may appoint a guardian for an adult with impaired capacity for personal matters to make particular decisions and do particular other things for the adult in relation to the matters; and

Note—

Personal matters do not include special personal matters or special health matters—schedule 2, section 2.

(b)the tribunal may appoint an administrator for an adult with impaired capacity for financial matters to make particular decisions and do particular other things for the adult in relation to the matters; and

(c)the tribunal may consent to the withholding or withdrawal of a life-sustaining measure and to particular special health care.

Note—

However, the tribunal may not consent to electroconvulsive therapy or a non-ablative neurosurgical procedure—Guardianship and Administration Act 2000, section 68(1).

(2)The Guardianship and Administration Act 2000 also provides a scheme for health care and special health care for adults with impaired capacity for the matter concerned, including an order of priority for dealing with health care and special health care.

Note—

See the Guardianship and Administration Act 2000, sections 65 and 66.

(3)The Guardianship and Administration Act 2000 also provides for the public advocate.

(4)If there is an inconsistency between this Act and the Guardianship and Administration Act 2000, the Guardianship and Administration Act 2000 prevails.

s 6A ins 2000 No. 8 s 263 sch 3

amd 2001 No. 95 s 23; 2014 No. 26 s 264; 2016 No. 5 s 915

6BRelationship with Public Guardian Act 2014

This Act is to be read in conjunction with the Public Guardian Act 2014 which provides for the public guardian and the community visitor (adult) program.

s 6B ins 2014 No. 26 s 265

ch 1A hdg ins 2019 No. 9 s 56

6CGeneral principles

The principles (the general principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act or an enduring document—

General principles

1Presumption of capacity
An adult is presumed to have capacity for a matter.

2Same human rights and fundamental freedoms

(1)An adult’s inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account.

(2)The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult’s capacity, must be recognised and taken into account.

(3)The principles on which an adult’s human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account, include—

(a)respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons; and

(b)non-discrimination; and

(c)full and effective participation and inclusion in society, including performing roles valued by society; and

(d)respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity; and

(e)equality of opportunity; and

(f)accessibility; and

(g)equality between all persons regardless of gender.

3Empowering adult to exercise human rights and fundamental freedoms
The importance of the following matters must be taken into account—

(a)empowering an adult to exercise the adult’s human rights and fundamental freedoms;

(b)encouraging and supporting an adult—

(i)to perform social roles valued in society; and

(ii)to live a life in the general community and to take part in activities enjoyed by the community; and

(iii)to achieve maximum physical, social, emotional and intellectual potential and to become as self-reliant as practicable;

(c)an adult’s right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter.

4Maintenance of adult’s existing supportive relationships

(1)The importance of maintaining an adult’s existing supportive relationships must be taken into account.

(2)Maintaining an adult’s existing supportive relationships may, for example, involve consultation with—

(a)the adult, to find out who are the members of the adult’s support network; and

(b)any persons who have an existing supportive relationship with the adult; and

(c)any members of the adult’s support network who are making decisions for the adult on an informal basis.

(3)The role of families, carers and other significant persons in an adult’s life to support the adult to make decisions should be acknowledged and respected.

5Maintenance of adult’s cultural and linguistic environment and values

(1)The importance of maintaining an adult’s cultural and linguistic environment and set of values, including religious beliefs, must be taken into account.

(2)Without limiting subsection (1), for an adult who is an Aboriginal person or a Torres Strait Islander, the importance of maintaining the adult’s Aboriginal or Torres Strait Islander cultural and linguistic environment and set of values, including Aboriginal tradition or Island custom, must be taken into account.

6Respect for privacy

(1)An adult’s privacy must be taken into account and respected.

(2)An adult’s personal information, including health information, must be protected on the same basis as other people’s personal information is protected.

7Liberty and security

(1)An adult’s right to liberty and security on an equal basis with others must be taken into account.

(2)An adult should not be deprived of the adult’s liberty except in accordance with the law.

8Maximising an adult’s participation in decision-making

(1)An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.

(2)An adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult’s life.

(3)An adult must be given the support necessary to enable the adult to communicate the adult’s decisions.

(4)To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult’s views, wishes and preferences.

(5)An adult’s views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct.

(6)An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision.

9Performance of functions and exercise of powers
A person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must do so—

(a)in a way that promotes and safeguards the adult’s rights, interests and opportunities; and

(b)in the way that is least restrictive of the adult’s rights, interests and opportunities.

10Structured decision-making

(1)In applying general principle 9, a person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must adopt the approach set out in subsections (2) to (5).

(2)First, the person or other entity must—

(a)recognise and preserve, to the greatest extent practicable, the adult’s right to make the adult’s own decision; and

(b)if possible, support the adult to make a decision.

(3)Second, the person or other entity must recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult.

(4)Third, if the adult’s views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult’s views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult’s views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult’s views, wishes and preferences would be.

(5)Fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4), the person or other entity may perform the function or exercise the power.

s 6C ins 2019 No. 9 s 56

6DHealth care principles

The principles (the health care principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act or an enduring document for a health matter—

Health care principles

1Application of general principles
A person or other entity that performs a function or exercises a power under this Act, or an enduring document, for a health matter in relation to an adult, must also apply the general principles.

2Same human rights and fundamental freedoms
In applying general principle 2 to a health matter—

(a)the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult’s capacity; and

(b)any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy (including the freedom to make one’s own choices) and independence of persons.

3Performance of functions and exercise of powers
In applying general principles 9 and 10 to a health matter, a person or other entity, in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must take into account—

(a)information given by the adult’s health provider; and

(b)if the adult has a medical condition—

(i)the nature of the adult’s medical condition; and

(ii)the adult’s prognosis; and

(c)if particular health care is proposed, any alternative health care that is available; and

(d)the nature and degree of any significant risks associated with the proposed health care or any alternative health care; and

(e)whether the proposed health care can be postponed because a better health care option may become available within a reasonable time or the adult is likely to become capable of making the adult’s own decision about the health care; and

(f)the consequences for the adult if the proposed health care is not carried out; and

(g)a consideration of the benefits versus the burdens of the proposed health care; and

(h)the effect of the proposed health care on the adult’s dignity and autonomy.

4Substituted judgement
For applying general principle 10(4) to a health matter, the views and wishes of an adult expressed when the adult had capacity may also be expressed—

(a)in an advance health directive; or

(b)by a consent to, or refusal of, health care given at a time when the adult had capacity to make decisions about the health care.

s 6D ins 2019 No. 9 s 56

7Application of ch 2

(1)This chapter does not apply to enduring powers of attorney.

(2)Except where otherwise provided, this chapter applies to all other powers of attorney made, whether under this Act or otherwise, after the commencement of this Act.

Note—

A general power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be a general power of attorney made under this Act—section 163.

For provisions applying to attorneys, see chapter 5 (Exercising power for a principal), part 1 (Provisions applying to attorneys).

8Powers of attorney

By a general power of attorney made under this Act, a person (principal) may—

(a)authorise 1 or more other persons (attorneys) to do for the principal anything (other than exercise power for a personal matter) that the principal can lawfully do by an attorney; and

Note—

Only an attorney under an enduring power of attorney may exercise power for a personal matter for a principal.

(b)provide terms or information about exercising the power.

9When attorney’s power exercisable

(1)A principal may specify in a power of attorney a time when, circumstance in which, or occasion on which, the power is exercisable.

(2)However, if the power of attorney does not specify a time when, circumstance in which, or occasion on which, the power is exercisable, the power becomes exercisable once the power of attorney is made.

10Powers of attorney given as security

(1)A power of attorney given as security is a power of attorney (other than an enduring power of attorney)—

(a)whether made under this Act or otherwise and whether made before or after the commencement of this Act; and

(b)given by a principal as security for a proprietary interest of the attorney or the performance of an obligation owed to the attorney; and

(c)that states it is irrevocable.

(2)Despite chapter 2, part 3, a power of attorney given as security is incapable of revocation except with the consent of the attorney while—

(a)the attorney has the proprietary interest, or persons deriving title to the interest under the attorney have the proprietary interest, secured by the power of attorney; or

(b)the obligation, the performance of which is secured by the power of attorney, remains undischarged.

Note—

Also, revocation by attorney provisions dealing with revocation because of impaired capacity, bankruptcy or insolvency or death of an attorney (sections 22 to 24) do not apply to powers of attorney given as security.

(3)A power of attorney given as security for a proprietary interest may be given to—

(a)the person entitled to the interest and the persons deriving title under the person to the interest; or

(b)a representative of a person mentioned in paragraph (a) who may be a specified officer, or the holder of a specified office, by reference to the title of the office concerned.

Note—

office includes position—see the Acts Interpretation Act 1954, schedule 1.

(4)The persons deriving title are taken to be attorneys of the power of attorney for all purposes.

(5)Subsection (4) does not affect a right in the power of attorney to appoint substitute attorneys.

(6)The power of a registered proprietor under the Land Title Act 1994 to revoke a power of attorney is subject to this section.

11Form of general power of attorney made under Act

A general power of attorney made under this Act must be in the approved form.

Note—

An approved form is a form approved by the chief executive under section 161—schedule 3 (Dictionary). Strict compliance with the form is not necessary and substantial compliance is sufficient—Acts Interpretation Act 1954, section 48A (Compliance with forms).

12Execution of powers of attorney

(1)This section does not apply to a power of attorney created by and contained in another instrument, for example, a mortgage or lease, that is signed by, or by direction of, the principal.

Notes—

1See the Property Law Act 1974, part 6, division 1 in relation to a document containing a power of attorney that takes effect as a deed.

2See the Property Law Act 1974, section 46A in relation to a power of attorney given by an individual under a deed.

(2)An instrument creating a power of attorney must be signed by, or by direction and in the presence of, the principal.

Note—

See also part 3A.

(3)This section does not affect—

(a)a requirement in or having effect under another Act about witnessing of instruments creating powers of attorney; or

(b)the rules about the execution of instruments by corporations.

s 12 amd 2021 No. 23 s 45

13Appointment of 1 or more attorneys

(1)By a general power of attorney made under this Act, a principal may—

(a)appoint 1 attorney, or more than 1 attorney, being joint or several, or joint and several, attorneys; and

(b)appoint as attorney—

(i)a person by name; or

(ii)a specified officer, or the holder of a specified office, by reference to the title of the office concerned.

Note—

office includes position—see the Acts Interpretation Act 1954, schedule 1.

(2)If a specified officer or the holder of a specified office is appointed as an attorney—

(a)the appointment does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the appointment was made ceases to be the officer or the holder of the office; and

(b)the power may be exercised by the person for the time being occupying or acting in the office concerned.

14Proof of power of attorney

(1)A power of attorney may be proved by a copy of the power of attorney certified under this section.

(2)Each page, other than the last page, of the copy must be certified to the effect that the copy is a true and complete copy of the corresponding page of the original.

(3)The last page of the copy must be certified to the effect that the copy is a true and complete copy of the original.

(4)Certification must be by 1 of the following persons—

(a)the principal;

(b)a justice;

Note—

justice means a justice of the peace—see the Acts Interpretation Act 1954, schedule 1.

(c)a commissioner for declarations;

(d)a notary public;

(e)a lawyer;

Note—

lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007—see the Acts Interpretation Act 1954, schedule 1.

(f)a trustee company under the Trustee Companies Act 1968;

(g)a stockbroker.

(5)If a copy of a power of attorney has been certified under this section, the power of attorney may also be proved by a copy, certified under this section, of the certified copy.

(6)This section does not prevent a power of attorney being proved in another way.

(7)This section also applies to a power of attorney made before the commencement of this Act.

Note—

See also section 7 (Application of ch 2).

15Relationship with other law

This part does not limit the events by which, or circumstances in which, a power of attorney is revoked orally or in another way or terminated by implication or operation of law.

16Advice of revocation

If a power of attorney is revoked under this division, the principal must take reasonable steps—

(a)to advise all attorneys affected by the revocation; and

(b)for a power of attorney registered in the power of attorney register—to deregister it.

17Written revocation

(1)If a power of attorney is or becomes revocable, it may be revoked by an instrument in the approved form executed in the same way as the power of attorney.

(2)Subsection (1) does not affect the rules about the execution of instruments by corporations.

(3)This section also applies to a power of attorney made before the commencement of this Act.

Note—

See also section 7 (Application of ch 2).

18Impaired capacity

(1)If a principal becomes a person who has impaired capacity, the power of attorney is revoked.

Note—

However, for a power of attorney given as security, see section 10.

(2)However, if a principal becomes incommunicate, the court may by order confirm that, from the date of the order, all or part of the power of attorney remains in full force and effect if the court is satisfied that the confirmation is for the benefit of the principal.

(3)For this section, a person becomes incommunicate if the person becomes incapable of communicating decisions about the person’s financial, property or legal affairs in some way.

19Death

When a principal dies, the power of attorney is revoked.

20According to terms

A power of attorney is revoked according to its terms.

Examples—

1If a power of attorney is expressed to operate for or during a specified period, it is revoked at the end of the period.

2If a power of attorney is expressed to operate for a specific purpose, it is revoked when the purpose is achieved.

21Resignation

If an attorney resigns, the power of attorney is revoked to the extent it gives power to the attorney.

Note—

An attorney may resign by signed notice to the principal—section 72(1).

22Impaired capacity

If an attorney becomes a person who has impaired capacity, the power of attorney is revoked to the extent it gives power to the attorney.

Note—

However, for a power of attorney given as security, see section 10.

23Bankruptcy or insolvency

(1)If an individual attorney becomes bankrupt or insolvent or takes advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction, the power of attorney is revoked to the extent it gives power to the attorney.

Note—

However, for a power of attorney given as security, see section 10.

(2)If a corporate attorney is wound up or dissolved or a receiver (other than a receiver for a limited purpose) or administrator is appointed of the attorney, the power of attorney is revoked to the extent it gives power to the attorney.

Example—

X is an attorney under a power of attorney that is not given as security. X becomes bankrupt. Therefore, the power of attorney is revoked to the extent it gives power to X.

If X was a joint and several attorney with Y, the power of attorney is only revoked to the extent it gives power to X. Y can continue to exercise the power.

The same applies if X was a joint attorney with Y because of section 59A.

If X was not a joint and several attorney and the power of attorney gives power to an alternative or successive attorney, the alternative or next attorney may then exercise power.

If none of these apply, no-one is able to exercise power under the power of attorney.

s 23 amd 2004 No. 43 s 3 sch

24Death

When an attorney dies, the power of attorney is revoked to the extent it gives power to the attorney.

Note—

See section 59A (Effect of power ending).

s 24 amd 2004 No. 43 s 3 sch

ch 2 pt 3A hdg ins 2021 No. 23 s 46

24ADefinitions for part

In this part—

accepted method, for electronically signing a general power of attorney, means—

(a)a method prescribed under section 24G; or

(b)if no method is prescribed, and subject to a regulation prescribing under section 24G a method that is not an accepted method for electronically signing a general power of attorney, a method that—

(i)identifies the signatory for the document and the signatory’s intention in relation to the contents of the document; and

(ii)is either—

(A)as reliable as appropriate for the purpose for which the document is signed, having regard to all the circumstances, including any relevant agreement; or

(B)proven in fact to have fulfilled the functions described in subparagraph (i), by itself or together with further evidence.

business—

(a)means—

(i)a corporation; or

(ii)a partnership under the Partnership Act 1891, section 5; or

(iii)another unincorporated association; but

(b)does not include an enterprise carried on by a sole trader.

corporation includes—

(a)a corporation under the Corporations Act, section 57A; and

(b)a corporation sole; and

(c)a statutory corporation.

counterpart, for a document, see section 24B.

document means any record of information however recorded and includes—

(a)anything on which there is writing; and

(b)anything on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and

(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

(d)any record of information that exists in digital form and is capable of being reproduced, transmitted, stored or duplicated by electronic means.

electronically sign, a document, means sign the document using an accepted method.

electronic document means—

(a)

a record of information reproduced from a thing mentioned in definition document, paragraph (c); or

(b)

a document of a type mentioned in definition document, paragraph (d).

general power of attorney means a general power of attorney made under this Act.

information includes information in the form of data, text or images.

make, in relation to a document, includes execute.

physical document means a document of a type mentioned in definition document, paragraph (a) or (b).

seal, of a corporation, includes a common seal of the corporation.

sign, a document, means—

(a)for a physical document—physically sign the document; or

(b)for an electronic document—electronically sign the document.

statutory corporation means an entity established, incorporated or registered under an Act of the Commonwealth or a State, that is not a corporation registered under the Corporations Act.

witness, a document, includes witness the signing of the document.

s 24A ins 2021 No. 23 s 46

24BWhat is a counterpart for a document

(1)A counterpart, for a document, is a copy of the document that includes the entire contents of the document.

(2)Despite subsection (1), a counterpart need not include—

(a)the signatures of the other persons who are to sign the document; or

(b)if a common seal is fixed to the document—the seal.

s 24B ins 2021 No. 23 s 46

24CApplication of part

(1)This part applies in relation to a general power of attorney for a business.

(2)A reference in this part to a general power of attorney is taken to include a reference to a document revoking a general power of attorney.

(3)If a provision of this part is inconsistent with any other provision of this Act, the provision of this part prevails to the extent of the inconsistency.

s 24C ins 2021 No. 23 s 46

24DRelationship with other laws

(1)If there is an inconsistency between this part and any other law in relation to a general power of attorney, this part prevails to the extent of the inconsistency.

(2)Despite subsection (1), this part does not affect the way in which general powers of attorney are executed under the Land Title Act 1994 or the Land Act 1994.

s 24D ins 2021 No. 23 s 46

24ENo sealing required

A general power of attorney for a business may be made even if it is not sealed or stated to be sealed.

s 24E ins 2021 No. 23 s 46

24FGeneral power of attorney may be in form of electronic document and electronically signed

A general power of attorney for a business may be in the form of an electronic document and may be electronically signed if it is executed under this part.

s 24F ins 2021 No. 23 s 46

24GAccepted method for electronically signing general power of attorney

A regulation may prescribe an accepted method, or what is not an accepted method, for electronically signing a general power of attorney for a business.

s 24G ins 2021 No. 23 s 46

24HExecution by corporation

(1)A corporation may execute a general power of attorney, without using a common seal, if the document is signed by—

(a)2 directors of the corporation; or

(b)1 director and 1 secretary of the corporation; or

(c)for a proprietary company that has a sole director—that director, if—

(i)the director is also the sole company secretary; or

(ii)the company does not have a company secretary; or

(d)a lawfully authorised agent or attorney of the corporation, whether or not the agent or attorney is appointed under seal.

(2)A corporation with a common seal may execute a general power of attorney if the seal is fixed to the document and the fixing of the seal is witnessed by—

(a)2 directors of the corporation; or

(b)1 director and 1 secretary of the corporation; or

(c)for a proprietary company that has a sole director—that director, if—

(i)the director is also the sole company secretary; or

(ii)the company does not have a company secretary.

(3)For subsection (2), the fixing of a common seal to a document is taken to have been witnessed by a person mentioned in paragraph (a), (b) or (c) of that subsection if—

(a)the person observes the fixing of the seal by audio visual link; and

(b)the person signs the document; and

(c)the document includes a statement that the person observed the fixing of the seal by audio visual link.

(4)Also, for a statutory corporation, the general power of attorney may be signed by a person, or in a way, authorised by the Act under which the corporation is established, incorporated or registered.

(5)Further, for a corporation that is not incorporated under an Australian law, the general power of attorney may be signed by a person, or in a way, authorised by the law of the place in which the corporation is incorporated.

(6)A general power of attorney may be signed under this section whether or not in the presence of a witness.

(7)If a person signs a general power of attorney for a corporation as a lawfully authorised agent or attorney for the corporation, the person must—

(a)sign the general power of attorney in a way that indicates the person is signing as a lawfully authorised agent or attorney; and

(b)if the person is a corporation—sign the general power of attorney under this section.

(8)This section does not limit the ways in which a general power of attorney for a corporation may be executed by the corporation.

(9)In this section—

attorney, for a corporation, means a person acting under the authority of a power of attorney given by the corporation under a deed, a general power of attorney or another law.

audio visual link means facilities that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places and includes videoconferencing.

director, of a corporation, means a member of the board of directors, council or other governing body of the corporation.

secretary, of a corporation, means the clerk, secretary or other permanent officer of the corporation.

s 24H ins 2021 No. 23 s 46

24IExecution by partnership or unincorporated association

(1)An individual may execute a general power of attorney on behalf of a partnership or unincorporated association by signing the general power of attorney.

(2)An individual may sign a general power of attorney under subsection (1) whether or not in the presence of a witness.

(3)If an individual signs a general power of attorney under subsection (1), the individual must sign the general power of attorney in a way that indicates the person is executing the general power of attorney on behalf of the partnership or unincorporated association.

(4)This section does not limit or otherwise affect another law or instrument that requires or permits a general power of attorney executed on behalf of a partnership or unincorporated association to be executed in a particular way.

Example—

This section does not affect an instrument that requires or permits a general power of attorney executed on behalf of a partnership to be executed by a stated number of partners.

s 24I ins 2021 No. 23 s 46

24JRequirement for signatory

A person signing a general power of attorney for a business must include the following information on the general power of attorney near the person’s signature—

(a)the person’s full name;

(b)the person’s office or designation in relation to the business.

s 24J ins 2021 No. 23 s 46

24KSigning counterpart or true copy

(1)This section applies if 2 or more persons are to sign a general power of attorney for a business.

(2)A person signing the general power of attorney for the business may sign a counterpart or true copy of the general power of attorney.

(3)For subsection (2), if the counterpart or true copy is electronically signed by a person, the counterpart or true copy need not include any material included in the general power of attorney about the method used for electronically signing the general power of attorney.

s 24K ins 2021 No. 23 s 46

24LLodgement or deposit of general power of attorney in registry

(1)This section applies to a general power of attorney that is proposed to be lodged or deposited in a registry for a purpose.

(2)If the general power of attorney is made in counterparts, each counterpart must be lodged or deposited in the registry for the purpose.

(3)If the general power of attorney or a counterpart of the general power of attorney is in the form of an electronic document, a printed copy of the general power of attorney or counterpart certified under subsection (4) must be lodged or deposited in the registry for the purpose.

(4)For subsection (3), the printed copy must be certified as a true copy of the original general power of attorney or counterpart—

(a)on the last page of the printed copy; and

(b)by 1 of the following persons—

(i)1 of the signatories;

(ii)a lawyer;

(iii)a justice;

(iv)a commissioner for declarations;

(v)a notary public;

(vi)a trustee company under the Trustee Companies Act 1968;

(vii)a stockbroker.

(5)In this section—

registry means—

(a)the land registry; or

(b)the water allocations register under the Water Act 2000.

s 24L ins 2021 No. 23 s 46

25Registration of powers of attorney and instruments revoking powers

(1)A power of attorney may be registered.

(2)An instrument revoking a power of attorney may be registered.

(3)Subject to another Act or a contrary intention in the power of attorney, if the power of attorney has been registered under an Act, it does not cease to authorise the attorney to do for the principal anything relevant to the purpose for which it was registered until an instrument revoking the power of attorney has been registered.

(4)This section also applies to a power of attorney made before the commencement of this Act.

Note—

See also section 7 (Application of ch 2).

26Offence to dishonestly induce the making or revocation of power of attorney

(1)A person must not dishonestly induce a person to make or revoke a power of attorney.

Maximum penalty—200 penalty units.

(2)This section also applies to a power of attorney made before the commencement of this Act.

Note—

See also section 7 (Application of ch 2).

27Application of ch 3

Except where otherwise provided, this chapter applies only to enduring documents.

28Meaning of enduring document

An enduring document is an enduring power of attorney or an advance health directive.

Note—

An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163.

29Meaning of eligible attorney

(1)An eligible attorney, for a matter under an enduring power of attorney, means—

(a)a person who—

(i)has capacity for the matter and is at least 18 years; and

(ii)is not, and has not been within the previous 3 years, a paid carer for the principal; and

Note—

See schedule 3 for the definition paid carer.

(iii)is not a health provider for the principal; and

Note—

See schedule 3 for the definition health provider.

(iv)is not a service provider for a residential service where the principal is a resident; and

(v)if the person would be given power for a financial matter—is not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or

(b)for a financial matter only—

(i)the public trustee; or

(ii)a trustee company under the Trustee Companies Act 1968; or

(c)for a personal matter only—the public guardian.

(2)An eligible attorney, for a matter under an advance health directive, means—

(a)a person who has capacity for the matter who is—

(i)at least 18 years; and

(ii)not a paid carer, or health provider, for the principal; and

Note—

See schedule 3 for the definitions paid carer and health provider.

(iii)not a service provider for a residential service where the principal is a resident; or

(b)the public guardian.

s 29 amd 2004 No. 43 s 91; 2014 No. 26 s 266; 2019 No. 9 s 57

30Meaning of eligible signer

(1)An eligible signer, to sign a document for a principal, is a person who—

(a)is at least 18 years; and

(b)is not the witness for the document; and

(c)is not an attorney of the principal.

(2)To avoid any doubt, it is declared that a person is not excluded from being an eligible signer merely because the person is an attorney’s employee who signs the document while acting in the ordinary course of employment.

(3)In this section—

attorney, for a document, means—

(a)a person who is an attorney of the principal whether under the document or otherwise; or

(b)if the document is all or part of an enduring document—a person who will be an attorney of the principal under the enduring document.

31Meaning of eligible witness

(1)An eligible witness, for a document, is a person who—

(a)except for a document revoking an advance health directive—is a justice, commissioner for declarations, notary public or lawyer; and

Note—

justice means a justice of the peace—see the Acts Interpretation Act 1954, schedule 1.

lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007—see the Acts Interpretation Act 1954, schedule 1.

(b)is not the person signing the document for the principal; and

(c)is not an attorney of the principal; and

(d)is not a relation of the principal or a relation of an attorney of the principal; and

(e)if the document gives power for a personal matter—is not a paid carer or health provider of the principal; and

(f)for an advance health directive—is not a beneficiary under the principal’s will.

(2)To avoid any doubt, it is declared that a person is not excluded from being an eligible witness merely because the person is an attorney’s employee who is the witness for the document while acting in the ordinary course of employment.

(3)In this section—

attorney, for a document, means—

(a)a person who is an attorney of the principal whether under the document or otherwise; or

(b)if the document is all or part of an enduring document—a person who will be an attorney of the principal under the enduring document.

s 31 amd 2019 No. 9 s 58

32Enduring powers of attorney

(1)By an enduring power of attorney, an adult (principal) may—

(a)authorise 1 or more other persons who are eligible attorneys (attorneys) to do anything in relation to 1 or more financial matters or personal matters for the principal that the principal could lawfully do by an attorney if the adult had capacity for the matter when the power is exercised; and

Note—

personal matters includes health matters but does not include special personal matters or special health matters—schedule 2, section 2.

(b)provide terms or information about exercising the power.

(2)An enduring power of attorney giving power for a matter is not revoked by the principal becoming a person with impaired capacity for the matter.

Note—

An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163.

(3)To remove any doubt, it is declared that an enduring power of attorney may be made by an adult principal who is outside the State.

s 32 amd 2019 No. 9 s 59

33When attorney’s power exercisable

(1)A principal may specify in an enduring power of attorney a time when, circumstance in which, or occasion on which, a power for a financial matter is exercisable.

(2)However, if the enduring power of attorney does not specify a time when, circumstance in which, or occasion on which, power for a financial matter becomes exercisable, the power becomes exercisable once the enduring power of attorney is made.

(3)Also, if—

(a)a time when, circumstance in which, or occasion on which, power for a financial matter is exercisable is specified; and

(b)before the specified time, circumstance or occasion, the principal has impaired capacity for the matter;

power for the matter is exercisable during any or every period the principal has the impaired capacity.

(4)Power for a personal matter under the enduring power of attorney is exercisable during any or every period the principal has impaired capacity for the matter and not otherwise.

Note—

However, the priority of an attorney’s power for a health matter is decided by the Guardianship and Administration Act 2000, section 66 (Adult with impaired capacity—order of priority in dealing with health matter). See, in particular, section 66(4).

(5)If an attorney’s power for a matter depends on the principal having impaired capacity for a matter, a person dealing with the attorney may ask for evidence, for example, a medical certificate, to establish that the principal has the impaired capacity.

s 33 amd 2000 No. 8 s 263 sch 3

34Recognition of enduring power of attorney made in other jurisdictions

If an enduring power of attorney is made in another jurisdiction and complies with the requirements in the other jurisdiction, then, to the extent the powers it gives could validly have been given by an enduring power of attorney made under this Act, the enduring power of attorney must be treated as if it were an enduring power of attorney made under, and in compliance with, this Act.

s 34 amd 2019 No. 9 s 60

35Advance health directives

(1)By an advance health directive, an adult principal may—

(a)give directions, about health matters and special health matters, for his or her future health care; and

(b)give information about his or her directions; and

(c)appoint 1 or more persons who are eligible attorneys to exercise power for a health matter for the principal in the event the directions prove inadequate; and

Note—

Note this does not include a special health matter.

(d)provide terms or information about exercising the power.

(2)Without limiting subsection (1), by an advance health directive the principal may give a direction—

(a)consenting, in the circumstances specified, to particular future health care of the principal when necessary and despite objection by the principal when the health care is provided; and

(b)requiring, in the circumstances specified, a life-sustaining measure to be withheld or withdrawn; and

(c)authorising an attorney to physically restrain, move or manage the principal, or have the principal physically restrained, moved or managed, for the purpose of health care when necessary and despite objection by the principal when the restraint, movement or management is provided.

(3)A direction in an advance health directive has priority over a general or specific power for health matters given to any attorney.

(4)An advance health directive is not revoked by the principal becoming a person with impaired capacity.

(5)To remove any doubt, it is declared that an advance health directive may be made by an adult principal who is outside the State.

s 35 amd 2000 No. 8 s 263 sch 3; 2001 No. 95 s 24; 2019 No. 9 s 61

36Operation of advance health directive

(1)A direction in an advance health directive—

(a)operates only while the principal has impaired capacity for the matter covered by the direction; and

(b)is as effective as if—

(i)the principal gave the direction when decisions about the matter needed to be made; and

(ii)the principal then had capacity for the matter.

Note—

See also section 101 (No less protection than if adult gave health consent).

(2)A direction to withhold or withdraw a life-sustaining measure can not operate unless—

(a)1 of the following applies—

(i)the principal has a terminal illness or condition that is incurable or irreversible and as a result of which, in the opinion of a doctor treating the principal and another doctor, the principal may reasonably be expected to die within 1 year;

(ii)the principal is in a persistent vegetative state, that is, the principal has a condition involving severe and irreversible brain damage which, however, allows some or all of the principal’s vital bodily functions to continue, including, for example, heart beat or breathing;

(iii)the principal is permanently unconscious, that is, the principal has a condition involving brain damage so severe that there is no reasonable prospect of the principal regaining consciousness;

Note—

This is sometimes referred to as ‘a coma’.

(iv)the principal has an illness or injury of such severity that there is no reasonable prospect that the principal will recover to the extent that the principal’s life can be sustained without the continued application of life-sustaining measures; and

(b)for a direction to withhold or withdraw artificial nutrition or artificial hydration—the commencement or continuation of the measure would be inconsistent with good medical practice; and

(c)the principal has no reasonable prospect of regaining capacity for health matters.

Note—

life-sustaining measure is defined in schedule 2, section 5A.

(3)An attorney’s power for a health matter under an advance health directive is exercisable during any or every period the principal has impaired capacity for the matter and not otherwise.

Note—

However, the priority of an attorney’s power for a health matter is decided by the Guardianship and Administration Act 2000, section 66 (Adult with impaired capacity—order of priority in dealing with health matter). See, in particular, section 66(4).

(4)While power for a health matter is exercisable under an advance health directive, the directive gives the attorney for the matter power to do, for the principal, anything in relation to the matter the principal could lawfully do if the principal had capacity for the matter.

(5)However, the power given is subject to the terms of the advance health directive and this Act.

(6)A person dealing with the attorney may ask for evidence, for example, a medical certificate, to establish that the principal has impaired capacity for the matter.

s 36 amd 2000 No. 8 s 263 sch 3; 2001 No. 95 s 25

37Act does not authorise euthanasia or affect particular provisions of Criminal Code

To avoid any doubt, it is declared that nothing in this Act—

(a)authorises, justifies or excuses killing a person; or

(b)affects the Criminal Code, section 284 or chapter 28.

Note—

Criminal Code—

284 Consent to death immaterial

Consent by a person to the causing of the person’s own death does not affect the criminal responsibility of any person by whom such death is caused.

Chapter 28 (Homicide—suicide—concealment of birth), including—

296 Acceleration of death

A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.

311 Aiding suicide

Any person who—

(a)procures another to kill himself or herself; or

(b)counsels another to kill himself or herself and thereby induces the other person to do so; or

(c)aids another in killing himself or herself;

is guilty of a crime, and is liable to imprisonment for life.

37AAct’s relationship with Forensic Disability Act

(1)For a forensic disability client under the Forensic Disability Act 2011 who has given a direction about the person’s health care or special health care, whether by giving a direction in an advance health directive or otherwise, an interpretation of that Act that is consistent with this Act and the direction is to be preferred to any other meaning.

(2)However, the Forensic Disability Act 2011 prevails in the case of inconsistency.

s 37A ins 2011 No. 13 s 259

38Act’s relationship with Mental Health Act

(1)For an involuntary patient under the Mental Health Act 2016 who has given a direction about the person’s health care or special health care, whether by giving a direction in an advance health directive or otherwise, an interpretation of that Act that is consistent with this Act and the direction is to be preferred to any other meaning.

(2)However, the Mental Health Act 2016 prevails in the case of inconsistency.

s 38 amd 2000 No. 16 s 590 sch 1 pt 2; 2016 No. 5 s 916

39Common law not affected

This Act does not affect common law recognition of instructions about health care given by an adult that are not given in an advance health directive.

40Recognition of enduring health care document made in other States

If a document prescribed by regulation is made in another State and complies with the requirements for the document in the other State, then, to the extent the document’s provisions could have been validly included in an advance health directive made under this Act, the document must be treated as if it were an advance health directive made under, and in compliance with, this Act.

41Principal’s capacity to make an enduring power of attorney

(1)A principal has capacity to make an enduring power of attorney only if the principal—

(a)is capable of making the enduring power of attorney freely and voluntarily; and

(b)understands the nature and effect of the enduring power of attorney.

Note—

Under the general principles, an adult is presumed to have capacity. See section 6C, general principle 1.

(2)Understanding the nature and effect of the enduring power of attorney includes understanding the following matters—

(a)the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power;

(b)when the power begins;

(c)once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney;

(d)the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power;

(e)the power the principal has given continues even if the principal becomes a person who has impaired capacity;

(f)at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power.

Note—

If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood these matters.

(3)For this section, schedule 3, definition capacity does not apply.

s 41 amd 2019 No. 9 s 62

42Principal’s capacity to make an advance health directive

(1)A principal has capacity to make an advance health directive, to the extent it does not give power to an attorney, only if the principal—

(a)understands the nature and effect of the advance health directive; and

(b)is capable of making the advance health directive freely and voluntarily.

Note—

Under the general principles, an adult is presumed to have capacity. See section 6C, general principle 1.

(2)Understanding the nature and effect of the advance health directive includes understanding the following matters—

(a)the nature and likely effects of each direction in the advance health directive;

(b)a direction operates only while the principal has impaired capacity for the matter covered by the direction;

(c)the principal may revoke a direction at any time the principal has capacity for the matter covered by the direction;

(d)at any time the principal is not capable of revoking a direction, the principal is unable to effectively oversee the implementation of the direction.

Note—

If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered the principal understood these matters.

(3)A principal has capacity to make an advance health directive, to the extent it gives power to an attorney, only if the principal has the capacity necessary to make an enduring power of attorney giving the same power.

Note—

See section 41 in relation to the capacity of a principal to make an enduring power of attorney.

(4)For this section, schedule 3, definition capacity does not apply.

s 42 sub 2019 No. 9 s 63

43Appointment of 1 or more eligible attorneys

(1)Only a person who is an eligible attorney may be appointed as an attorney by an enduring document.

Note—

See section 29 (Meaning of eligible attorney).

(2)A principal may appoint 1 or more of the following—

(a)a single attorney for a matter or all matters;

(b)different attorneys for different matters;

(c)a person to act as an attorney for a matter or all matters in a circumstance stated in the enduring document;

(d)alternative attorneys for a matter or all matters so power is given to a particular attorney only in a circumstance stated in the enduring document;

(e)successive attorneys for a matter or all matters so power is given to a particular attorney only when power given to a previous attorney ends;

(f)joint or several, or joint and several, attorneys for a matter or all matters;

(g)2 or more joint attorneys for a matter or all matters, being a number less than the total number of attorneys for the matter or all matters.

(3)However, a principal may not appoint more than 4 joint attorneys for a matter under an enduring power of attorney.

s 43 amd 2000 No. 8 s 263 sch 3; 2019 No. 9 s 64

44Formal requirements

(1)An enduring power of attorney must be in an approved form.

Note—

An approved form is a form approved by the chief executive under section 161—schedule 3 (Dictionary).

(2)An advance health directive must be written and may be in the approved form.

(3)An enduring document must—

(a)be signed—

(i)by the principal; or

(ii)if the principal instructs—for the principal and in the principal’s presence, by an eligible signer; and

Note—

See section 30 (Meaning of eligible signer).

(b)be signed and dated by an eligible witness.

Note—

See section 31 (Meaning of eligible witness).

It is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood the necessary matters. For a power of attorney—see section 41 and for an advance health directive—see section 42.

(4)If an enduring document is signed by the principal, it must include a certificate signed by the witness stating the principal—

(a)signed the enduring document in the witness’s presence; and

(b)at the time, appeared to the witness to have the capacity necessary to make the enduring document.

(5)If an enduring document is signed by a person for the principal, it must include a certificate signed by the witness stating—

(a)the principal, in the witness’s presence, instructed the person to sign the enduring document for the principal; and

(b)the person signed it in the presence of the principal and witness; and

(c)the principal, at the time, appeared to the witness to have the capacity necessary to make the enduring document.

(6)An advance health directive must also include a certificate signed and dated by a doctor or nurse practitioner mentioned in subsection (7) stating the principal, at the time of making the advance health directive, appeared to the doctor or nurse practitioner to have the capacity necessary to make it.

(7)The doctor or nurse practitioner must not be—

(a)the person witnessing the advance health directive; or

(b)the person signing the advance health directive for the principal; or

(c)an attorney of the principal; or

(d)a relation of the principal or a relation of an attorney of the principal; or

(e)a beneficiary under the principal’s will.

(8)An enduring document is effective in relation to an attorney only if the attorney has accepted the appointment by signing the enduring document.

(9)In this section—

nurse practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the nursing profession, other than as a student, whose registration is endorsed as being qualified to practise as a nurse practitioner.

s 44 amd 2021 No. 23 s 47

45Proof of enduring document

(1)An enduring document may be proved by a copy of the enduring document certified under this section.

Note—

An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163.

(2)The copy must be certified to the effect that it is a true and complete copy of the original.

(3)Certification must be by 1 of the following persons—

(a)the principal;

(b)a justice;

Note—

justice means a justice of the peace—see the Acts Interpretation Act 1954, schedule 1.

(c)a commissioner for declarations;

(d)a notary public;

(e)a lawyer;

Note—

lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007—see the Acts Interpretation Act 1954, schedule 1.

(f)a trustee company under the Trustee Companies Act 1968;

(g)a stockbroker.

(4)If a copy of an enduring document has been certified under this section, the enduring document may also be proved by a copy, certified under this section, of the certified copy.

(5)This section does not prevent an enduring document being proved in another way.

s 45 amd 2019 No. 9 s 65

46Advice of revocation

If an enduring document is revoked under this division, the principal must take reasonable steps—

(a)to advise all attorneys under the enduring document of its revocation; and

(b)for an enduring power of attorney registered under the Land Title Act 1994—to deregister it.

Note—

An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163.

47Principal’s capacity for written revocation of power of attorney

(1)A principal may revoke an enduring power of attorney in writing only if the principal has the capacity necessary to make an enduring power of attorney giving the same power.

Note—

See section 41 (Principal’s capacity to make an enduring power of attorney).

(2)However, a principal may revoke an enduring power of attorney in writing, to the extent it gives power for a health matter, if the principal has the capacity necessary to make an enduring power of attorney giving the same power for the health matter.

48Principal’s capacity for written revocation of advance health directive

(1)A principal may revoke an advance health directive in writing, to the extent it includes a direction about a health matter or special health matter, only if the principal has capacity for the matter.

(2)A principal may revoke an advance health directive in writing, to the extent it gives power to an attorney, only if the principal has the capacity necessary to make an advance health directive giving the same power.

49Formal requirements for written revocation of enduring document

(1)A written revocation of an enduring power of attorney must be in the approved form.

(2)However, a written revocation of an enduring power of attorney, to the extent it gives power for a health matter, or a written revocation of an advance health directive need not be in the approved form.

(3)The revocation of an enduring power of attorney must—

(a)be signed—

(i)by the principal; or

(ii)if the principal revoking it instructs—for the principal and in the principal’s presence, by an eligible signer; and

Note—

See section 30 (Meaning of eligible signer).

(b)be signed and dated by an eligible witness.

Note—

See section 31 (Meaning of eligible witness).

It is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood the necessary matters. For a power of attorney—see section 47 and for an advance health directive—see section 48.

(4)If the revocation is signed by the principal, it may include a certificate signed by the witness stating the principal—

(a)signed the revocation in the witness’s presence; and

(b)at the time, appeared to the witness to have the capacity necessary for the revocation.

(5)If the revocation is signed by a person for the principal, it must include a certificate signed by the witness stating—

(a)the principal, in the witness’s presence, instructed the person to sign the revocation on the principal’s behalf; and

(b)the person signed it in the presence of the principal and witness; and

(c)the principal, at the time, appeared to the witness to have the capacity necessary for the revocation.

50Later enduring document

(1)A principal’s enduring power of attorney is revoked, to the extent of an inconsistency, by a later enduring document of the principal.

Example—

If a principal gives—

(a)power for a matter to an attorney by an enduring power of attorney; and

(b)either—

(i)power for the matter to a different attorney by a later enduring power of attorney; or

(ii)a direction about the matter in a later advance health directive;

the earlier enduring power of attorney is revoked to the extent it gives power for the matter.

(2)A principal’s advance health directive is revoked, to the extent of an inconsistency, by a later advance health directive.

Note—

If there is a direction about a health matter in an advance health directive and a later enduring power of attorney giving an attorney power for the health matter, the direction prevails. See the Guardianship and Administration Act 2000, section 66 (Adult with impaired capacity—order of priority in dealing with health matter).

s 50 amd 2000 No. 8 s 263 sch 3

51Death

When a principal dies, the enduring document is revoked.

52Marriage

Unless there is a contrary intention expressed in the enduring document, if a principal marries after making an enduring document, the enduring document is revoked to the extent it gives power to someone other than the principal’s husband or wife.

s 52 amd 2002 No. 74 s 90 sch

52ACivil partnership

Unless there is a contrary intention expressed in the enduring document, if a principal enters into a civil partnership after making an enduring document, the enduring document is revoked to the extent it gives power to someone other than the principal’s civil partner.

s 52A ins 2011 No. 46 s 69

amd 2012 No. 12 s 59 sch pts 2–3; 2015 No. 33 s 52 (2)–(3) sch pts 2–3

53Divorce

If a principal divorces after making an enduring document, the enduring document is revoked to the extent it gives power to the divorced spouse.

53ATermination of civil partnership

(1)This section applies if—

(a)a principal makes an enduring document; and

(b)after making the enduring document, the principal’s civil partnership is terminated under the Civil Partnerships Act 2011, section 18.

(2)The enduring document is revoked to the extent it gives power to the principal’s previous civil partner.

s 53A ins 2011 No. 46 s 70

amd 2012 No. 12 s 59 sch pts 1–3; 2015 No. 33 s 52 sch pts 1–3

54According to terms

An enduring document is revoked according to its terms.

Examples—

1If an enduring power of attorney is expressed to operate for or during a specified period, it is revoked at the end of the period.

2If an enduring power of attorney is expressed to operate for a specific purpose, it is revoked when the purpose is achieved.

55Resignation

If an attorney resigns as attorney for a matter, the enduring document is revoked to the extent it gives power to the attorney for the matter.

Note—

An attorney may resign by signed notice to the principal if the principal has capacity for the matter (section 72 (Resignation of attorney)) or otherwise with the court’s leave (section 82 (Resignation of attorney while principal has impaired capacity)).

56Impaired capacity

If an attorney for a matter becomes a person who has impaired capacity for the matter, the enduring document is revoked to the extent it gives power to the attorney for the matter.

57Bankruptcy or insolvency

(1)This section applies only to enduring powers of attorney.

(2)If an individual attorney for a financial matter becomes bankrupt or insolvent or takes advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction, the power of attorney is revoked to the extent it gives power for financial matters to the attorney.

(3)If a corporate attorney is wound up or dissolved or a receiver (other than a receiver for a limited purpose) or administrator is appointed of the attorney, the power of attorney is revoked to the extent it gives power to the attorney.

Example—

Under an enduring power of attorney, X, an individual, exercises power for financial matters generally. X becomes bankrupt. Therefore, the enduring power of attorney is revoked to the extent it gives power for financial matters to X.

If X was a joint and several attorney with Y, the enduring power of attorney is only revoked to the extent it gives power to X. Y can continue to exercise the power.

The same applies if X was a joint attorney with Y because of section 59A.

If X was not a joint and several attorney and the enduring power of attorney gives an alternative or successive attorney power for financial matters, the alternative or next attorney then has power for financial matters.

If none of these apply, no-one is able to exercise power for financial matters under the enduring power of attorney.

Note—

Section 59A (Effect of power ending) allows the remaining joint attorney to exercise a power another joint attorney is unable to exercise.

s 57 amd 2005 No. 70 s 166 sch

58Death

When an attorney dies, the enduring document is revoked to the extent it gives power to the attorney.

59Paid carer or health provider

If an attorney becomes a paid carer, or health provider, for the principal, the enduring document is revoked to the extent it gives power for a personal matter to the attorney.

59AAService provider

If the attorney becomes the service provider for a residential service where the principal is a resident, the enduring document is revoked to the extent it gives power to the attorney.

s 59AA ins 2004 No. 43 s 92

59AEffect of power ending

If an attorney’s power for a matter ends and the attorney was a joint attorney for the matter—

(a)if, of the joint attorneys, there is 1 remaining attorney, the remaining attorney may exercise power for the matter; and

(b)if, of the joint attorneys, there are 2 or more remaining attorneys, the remaining attorneys may exercise power for the matter and, if exercising power, must exercise power jointly.

s 59A ins 2000 No. 8 s 263 sch 3

amd 2002 No. 34 s 40

60Registration of powers of attorney and instruments revoking powers

(1)An enduring power of attorney may be registered.

Note—

An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163.

(2)An instrument revoking an enduring power of attorney may be registered.

(3)Subject to another Act, if an enduring power of attorney has been registered, it may not, unless a different intention appears from the enduring power of attorney, cease to authorise the attorney to deal with land for the principal until an instrument revoking the enduring power of attorney has been registered.

61Offence to dishonestly induce the making or revocation of enduring document

A person must not dishonestly induce a person to make or revoke an enduring document.

Maximum penalty—200 penalty units.

61AApplication of ss 61B–61D

Sections 61B to 61D apply only in relation to an enduring power of attorney.

s 61A ins 2019 No. 9 s 66

61BEffect on beneficiary’s interest if property dealt with by attorney

(1)This section applies to a person who is a beneficiary (the beneficiary) under a deceased principal’s will.

(2)The beneficiary has the same interest in any surplus money or other property (the proceeds) arising from a sale, mortgage, charge, disposition of, or other dealing with, property under the powers given to an attorney under an enduring power of attorney as the beneficiary would have had in the property sold, mortgaged, charged, disposed of or otherwise dealt with, if the sale, mortgage, charge, disposition or other dealing had not happened.

(3)The beneficiary is also entitled to—

(a)any money or other property that is able to be traced as income generated by the proceeds; and

(b)any capital gain that is generated from the proceeds.

(4)This section applies even if the beneficiary is the attorney who sold, mortgaged, charged, disposed of or otherwise dealt with the property.

(5)This section applies subject to any order made by the court under section 61D(1).

s 61B ins 2019 No. 9 s 66

61CAttorney not required to keep proceeds and property separate

Section 61B does not require an attorney for a principal who has sold, mortgaged, charged, disposed of, or otherwise dealt with, the principal’s property under the powers given to the attorney, to keep any surplus money or other property arising from the sale, mortgage, charge, disposition or other dealing separate from other property of the principal.

s 61C ins 2019 No. 9 s 66

61DApplication to court to confirm or vary operation of s 61B

(1)An application may be made to the court for—

(a)an order, including an order to direct a conveyance, deed or other thing to be executed or done, to give effect to section 61B; or

(b)an order to ensure a beneficiary under the principal’s will does not gain an unjust and disproportionate advantage or suffer an unjust and disproportionate disadvantage of a kind not contemplated by the will because of the operation of section 61B.

(2)An application may be made by—

(a)a beneficiary under the principal’s will; or

(b)the personal representative of a deceased beneficiary under the principal’s will; or

(c)the personal representative of the principal.

(3)An order made under subsection (1)(b)—

(a)has effect as if it had been made as a codicil to the principal’s will executed immediately before the principal’s death; and

(b)applies despite any contrary operation of section 61B.

(4)An application under this section must be made to the court within 6 months after the principal’s death.

(5)The court may extend the application time.

(6)The Succession Act 1981, section 44(1) to (4) applies to an application and an order made on it as if the application were an application under part 4 of that Act by a person entitled to make an application.

(7)Despite section 109A, a reference in this section to the court does not include a reference to the tribunal.

s 61D ins 2019 No. 9 s 66

62Statutory health attorney

(1)This Act authorises a statutory health attorney for an adult’s health matter to make any decision about the health matter that the adult could lawfully make if the adult had capacity for the matter.

Note—

Note this does not include a special health matter.

(2)A statutory health attorney’s power for a health matter is exercisable during any or every period the adult has impaired capacity for the matter.

Note—

However, the priority of an attorney’s power is decided by the Guardianship and Administration Act 2000, section 66 (Adult with impaired capacity—order of priority in dealing with health matter). See, in particular, section 66(5).

s 62 amd 2000 No. 8 s 263 sch 3

63Who is the statutory health attorney

(1)For a health matter, an adult’s statutory health attorney is the first, in listed order, of the following people who is readily available and culturally appropriate to exercise power for the matter—

(a)a person who is 18 years or more and who is a spouse of the adult if the relationship between the adult and the spouse is close and continuing;

Note—

See the Acts Interpretation Act 1954, schedule 1 for the definition spouse.

(b)a person who is 18 years or more and who has the care of the adult and is not—

(i)a paid carer for the adult; or

(ii)a health provider for the adult; or

(iii)a service provider for a residential service where the adult is a resident;

(c)a person who is 18 years or more and who is a close friend or relation of the adult and is not—

(i)a paid carer for the adult; or

(ii)a health provider for the adult; or

(iii)a service provider for a residential service where the adult is a resident.

Note—

If there is a disagreement about which of 2 or more eligible people should be the statutory health attorney or how the power should be exercised, see the Guardianship and Administration Act 2000, section 42 (Disagreement about health matter).

(2)If no-one listed in subsection (1) is readily available and culturally appropriate to exercise power for a matter, the public guardian is the adult’s statutory health attorney for the matter.

(3)Without limiting who is a person who has the care of the adult, for this section, a person has the care of an adult if the person—

(a)provides domestic services and support to the adult; or

(b)arranges for the adult to be provided with domestic services and support.

(4)If an adult resides in an institution (for example, a hospital, nursing home, group home, boarding-house or hostel) at which the adult is cared for by another person, the adult—

(a)is not, merely because of this fact, to be regarded as being in the care of the other person; and

(b)remains in the care of the person in whose care the adult was immediately before residing in the institution.

(5)For subsection (1)(c), a relation of the adult is a person, other than a person mentioned in subsection (1)(a) or (b)—

(a)who has a close personal relationship with the adult and a personal interest in the adult’s welfare; and

(b)who—

(i)is related to the adult by blood, spousal relationship, adoption or a foster relationship; or

(ii)for an Aboriginal person—is a person who, under Aboriginal tradition, is regarded as a relative of the adult; or

(iii)for a Torres Strait Islander—is a person who, under Island custom, is regarded as a relative of the adult.

s 63 amd 2000 No. 8 s 263 sch 3; 2014 No. 26 s 267; 2019 No. 9 s 67

65Application of pt 1

Except where otherwise provided, this part applies to an attorney under—

(a)a general power of attorney made under this Act; or

Note—

A general power of attorney, or enduring power of attorney, made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be a general power of attorney, or enduring power of attorney, made under this Act—section 163.

(b)an enduring document; or

(c)a power of attorney made otherwise than under this Act, whether before or after its commencement.

66Act honestly and with reasonable diligence

(1)An attorney must exercise power honestly and with reasonable diligence to protect the principal’s interests.

Maximum penalty—200 penalty units.

(2)In addition to any other liability the attorney may incur, the court may order the attorney to compensate the principal for a loss caused by the attorney’s failure to comply with subsection (1).

67Subject to terms of document

An attorney who may exercise a power under a document must, when exercising the power, exercise it subject to the terms of the document.

69Execution of instrument etc.

(1)If necessary or convenient for the exercise of power given to an attorney, the attorney may—

(a)execute an instrument with the attorney’s own signature and, despite the fact that the power of attorney was given under hand, if sealing is required or used, with the attorney’s own seal; and

(b)do any other thing in the attorney’s own name.

(2)An instrument executed by an attorney must be executed in a way showing that the attorney executes it as attorney for the principal.

(3)An instrument executed, or thing done, in the way specified in this section is as effective as if executed or done by the principal—

(a)with the principal’s signature; or

(b)with the principal’s signature and seal; or

(c)in the principal’s name.

(4)This section applies subject to the Property Law Act 1974, section 46F.

Note—

This section deals with the execution of documents by corporations.

s 69 amd 2021 No. 23 s 58 sch 1

70Subject to guardian or administrator

(1)If a person is appointed under the Guardianship and Administration Act 2000 as guardian or administrator for a principal, an attorney for the principal may exercise power only to the extent authorised by the tribunal.

(2)In this section—

attorney includes a statutory health attorney.

s 70 amd 2000 No. 8 s 263 sch 3

71Not exercise revoked power

An attorney, who knows a power given to the attorney has been revoked, must not exercise, or purport to exercise, the power.

Maximum penalty—200 penalty units.

72Resignation of attorney

(1)An attorney may resign as attorney for a matter by signed notice given to the principal.

Note—

However, for an enduring document, see also section 82 (Resignation of attorney while principal has impaired capacity).

(2)This section does not affect another way an attorney may resign allowed by law.

Note—

For example, an attorney under a power of attorney made under the common law or the Property Law Act 1974, may resign orally.

73Avoid conflict transaction

(1)An attorney for a financial matter may enter into a conflict transaction only if the principal, or the court under section 118(2), has authorised the transaction, conflict transactions of that type or conflict transactions generally.

Note—

However, see section 105 (Relief from personal liability).

(2)Despite subsection (1), if an attorney enters into a conflict transaction without obtaining an authorisation mentioned in subsection (1) for the transaction, a conflict transaction of that type or conflict transactions generally, the principal may retrospectively authorise the transaction if the principal has capacity to do so.

(3)A conflict transaction authorised under subsection (2) is taken to be, and to have always been, as valid as if it had been entered into under an authorisation given by the principal before the attorney entered into the transaction.

Note—

See also section 118(3) in relation to the retrospective authorisation of particular transactions by the court.

(4)Subsection (5) applies if an attorney enters into a conflict transaction without obtaining an authorisation mentioned in subsection (1).

(5)To remove any doubt, it is declared that, until the conflict transaction is authorised under subsection (2) or section 118(3), the attorney has acted contrary to subsection (1).

(6)A conflict transaction is a transaction in which there may be conflict, or which results in conflict, between—

(a)the duty of an attorney towards the principal; and

(b)either—

(i)the interests of the attorney, or a relation, business associate or close friend of the attorney; or

(ii)another duty of the attorney.

Examples—

1A conflict transaction happens if an attorney for a financial matter buys the principal’s car.

2A conflict transaction happens if an attorney for a financial matter lends the principal’s money to a close friend of the attorney.

3A conflict transaction happens if an attorney for a financial matter rents the principal’s residential property to the attorney or a relative of the attorney.

4A conflict transaction happens if an attorney for a financial matter uses the principal’s money to pay the personal expenses of the attorney, including, for example, the attorney’s personal travel expenses.

5A conflict transaction happens if an attorney for a financial matter buys the principal’s house.

6A conflict transaction does not happen if an attorney for a financial matter is acting under section 89 to maintain the principal’s dependants.

(7)However, a transaction is not a conflict transaction merely because—

(a)the attorney is related to the principal; or

(b)the attorney may be a beneficiary of the principal’s estate on the principal’s death; or

(c)by the transaction the attorney, in the attorney’s own right and on behalf of the principal—

(i)deals with an interest in property jointly held; or

(ii)acquires a joint interest in property; or

(iii)obtains a loan or gives a guarantee or indemnity in relation to a transaction mentioned in subparagraph (i) or (ii).

(8)Also, to remove any doubt, it is declared that the making of a gift or donation under section 88 is not a conflict transaction.

(9)A conflict transaction between an attorney and a person who does not know, or have reason to believe, the transaction is a conflict transaction is, in favour of the person, as valid as if the transaction were not a conflict transaction.

(10)In this section—

joint interest includes an interest as a joint tenant or tenant in common.

s 73 amd 2019 No. 9 s 68

74Protected use of confidential information

(1)Despite section 74A, an attorney, including a statutory health attorney, may disclose confidential information that relates only to a particular person to the particular person.

(2)If an attorney, including a statutory health attorney, gains confidential information because of being an attorney, or because of an opportunity given by being an attorney, the person may use the information for the purposes of this Act or as provided under subsection (3).

(3)Confidential information may be used—

(a)if authorised or required under a regulation or another law; or

(b)for a proceeding arising out of or in connection with this Act; or

(c)if authorised by the person to whom the information relates; or

(d)if authorised by the court or the tribunal in the interests of justice; or

(e)if necessary to prevent a serious risk to a person’s life, health or safety; or

(f)for the purpose of obtaining legal or financial advice; or

(g)if reasonably necessary to obtain counselling, advice or other treatment; or

(h)in reporting a suspected offence to a police officer or assisting a police officer in the investigation of a suspected offence; or

(i)in assisting the public guardian, the public advocate or a public service officer in the performance of functions under this Act, the Guardianship and Administration Act 2000 or the Public Guardian Act 2014.

(4)In this section—

confidential information includes information about a person’s affairs but does not include—

(a)information within the public domain unless further disclosure of the information is prohibited by law; or

(b)statistical or other information that could not reasonably be expected to result in the identification of the person to whom the information relates; or

(c)information about a guardianship proceeding.

guardianship proceeding see Guardianship and Administration Act 2000, schedule 4.

use, confidential information, includes disclose or publish.

s 74 amd 2005 No. 70 s 126B

sub 2008 No. 54 s 24

amd 2012 No. 37 s 51 sch; 2014 No. 26 s 268

74AProhibited use of confidential information

(1)An attorney, including a statutory health attorney, must not use confidential information gained because of being an attorney, or because of an opportunity given by being an attorney, other than as provided under section 74, unless the person has a reasonable excuse.

Maximum penalty—200 penalty units.

(2)In this section—

confidential information see section 74.

use, confidential information, see section 74.

s 74A ins 2008 No. 54 s 24

75Application of pt 2

Except where otherwise provided, this part applies to—

(a)an attorney under an enduring document; and

(b)a statutory health attorney.

77Attorney has maximum power if not otherwise stated

To the extent an enduring document does not state otherwise, an attorney is taken to have the maximum power that could be given to the attorney by the enduring document.

Example—

If an adult’s enduring power of attorney merely states that ‘I appoint [full name] as my attorney’, the appointee is taken to have power for all financial matters and all personal matters for the adult.

78Multiple attorneys are joint if not otherwise stated

Two or more attorneys for a matter are appointed as joint attorneys for the matter if the enduring document does not state how they are to share the power given to them.

79Consult with principal’s other appointees or attorneys

(1)If there are 2 or more persons who are guardian, administrator or attorney for a principal, the persons must consult with one another on a regular basis to ensure the principal’s interests are not prejudiced by a breakdown in communication between them.

Note—

Note the Guardianship and Administration Act 2000, sections 41 (Disagreement about matter other than health matter), 42 (Disagreement about health matter) and 43 (Acting contrary to general principles or health care principles).

(2)However, failure to comply with subsection (1) does not affect the validity of an exercise of power by a guardian, administrator or attorney.

s 79 sub 2000 No. 8 s 263 sch 3

amd 2019 No. 9 s 98 sch 1

80Act together with joint attorneys

(1)Attorneys for a principal who may exercise power for a matter jointly must exercise the power unanimously unless the enduring document concerned provides otherwise.

(2)If it is impracticable or impossible to exercise the power unanimously, 1 or more of the attorneys, or another interested person for the adult, may apply for directions to the court.

s 80 sub 2000 No. 8 s 263 sch 3

81Right of attorney to information

(1)An attorney has a right to all the information that the principal would have been entitled to if the principal had capacity and that is necessary to make, for the principal, informed decisions about anything the attorney is authorised to do.

(2)A person who has custody or control of the information must disclose the information to the attorney on request.

(3)This section overrides—

(a)any restriction, in an Act or the common law, about the disclosure or confidentiality of information; and

(b)for an attorney under an enduring power of attorney—any claim of confidentiality or privilege, including a claim based on legal professional privilege; and

(c)for another attorney—any claim of confidentiality or privilege, excluding a claim based on legal professional privilege.

82Resignation of attorney while principal has impaired capacity

(1)Despite section 72, while a principal has impaired capacity for a matter, an attorney under an enduring document may only resign as attorney for the matter with the court’s leave.

(2)If the court gives leave for an attorney to resign for a matter, the court may appoint a new attorney to replace the attorney for the matter.

Note—

The court is not limited to appointing an eligible attorney (defined in section 29) as the new attorney.

83Application

Except where otherwise provided, this part applies only to enduring powers of attorney.

Note—

An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163.

84Power to invest

(1)This section does not apply to an enduring power of attorney made under the Property Law Act 1974.

(2)An attorney for financial matters may invest only in authorised investments.

(3)However, if, when the power became exercisable, the principal had investments that were not authorised investments, an attorney for financial matters may continue the investments, including by taking rights to issues of new shares, or options for new shares, to which the principal becomes entitled by the principal’s existing shareholding.

(4)In this section—

authorised investment means—

(a)an investment which, if the investment were of trust funds by a trustee, would be an investment by the trustee exercising a power of investment under the Trusts Act 1973, part 3; or

(b)an investment approved by the tribunal.

s 84 amd 2000 No. 8 s 263 sch 3

85Keep records

An attorney for a financial matter must keep and preserve accurate records and accounts of all dealings and transactions made under the power.

Note—

Under the Public Guardian Act 2014, section 21, the public guardian may have the accounts audited.

s 85 amd 2002 No. 34 s 41; 2014 No. 26 s 269

86Keep property separate

(1)An attorney for a financial matter must keep the attorney’s property separate from the principal’s property.

Maximum penalty—300 penalty units.

(2)Subsection (1) does not apply to—

(a)property owned jointly by the principal and attorney; or

(b)property acquired jointly by the principal and attorney in place of property owned jointly by the principal and attorney.

(3)Subsection (1) does not affect another obligation imposed by law.

s 86 amd 2003 No. 87 s 55

87Presumption of undue influence

The fact that a transaction is between a principal and 1 or more of the following—

(a)an attorney under an enduring power of attorney or advance health directive;

(b)a relation, business associate or close friend of the attorney;

gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence.

88Gifts and donations

(1)Unless otherwise authorised under this Act, an attorney for a principal may give away or donate the principal’s property only if—

(a)the gift or donation is—

(i)of the nature the principal made when the principal had capacity; or

(ii)of the nature the principal might reasonably be expected to make; and

(b)the value of the gift or donation is not more than what is reasonable having regard to all the circumstances and, in particular, the principal’s financial circumstances.

(2)The attorney, or a charity with which the attorney has a connection, is not precluded from receiving a gift or donation under subsection (1).

s 88 sub 2019 No. 9 s 70

89Maintain principal’s dependants

(1)An attorney for financial matters for an individual may provide from the principal’s estate for the needs of a dependant of the principal.

(2)However, unless there is a contrary intention expressed in the enduring power of attorney, what is provided must not be more than what is reasonable having regard to all the circumstances and, in particular, the principal’s financial circumstances.

96Definitions for part

In this part—

invalidity—

(a)in relation to an advance health directive, means invalidity because—

(i)the advance health directive was made in another State in purported compliance with the requirements of the law of that other State but does not comply with that State’s requirements; or

(ii)the advance health directive has been revoked; or

(b)in relation to a power under a document, means invalidity because—

(i)the document was made in another jurisdiction in purported compliance with the requirements of the law of that other jurisdiction but does not comply with that jurisdiction’s requirements; or

(ii)the document has been revoked wholly or to the extent it gives the power; or

(iii)the power is not exercisable at the time it is purportedly exercised.

know—

(a)in relation to the invalidity of an advance health directive, includes—

(i)know of the happening of an event that invalidates the directive; or

(ii)have reason to believe the directive is invalid; or

(b)in relation to the invalidity of a power under a document, includes—

(i)know of the happening of an event that invalidates the power; or

(ii)have reason to believe the power is invalid.

s 96 sub 2019 No. 9 s 71

97Protection if court advice, directions or recommendations

An attorney who acts in compliance with the court’s advice, directions or recommendations is taken to have complied with this Act unless the attorney knowingly gave the court false or misleading information relevant to the court’s advice, directions or recommendations.

98Protection for attorney if unaware of invalidity

(1)This section applies to an attorney under—

(a)a general power of attorney made under this Act; or

(b)an enduring document; or

(c)a power of attorney made otherwise than under this Act, whether before or after its commencement.

(2)An attorney who, without knowing a power is invalid, purports to exercise the power does not incur any liability, either to the principal or anyone else, because of the invalidity.

Note—

See section 113 (Declaration about validity).

99Protection for person dealing with attorney and next person if unaware of invalidity

(1)A person who—

(a)deals with an attorney under a general power of attorney made under this Act, or an enduring document, (the document); and

Note—

A general power of attorney, or enduring power of attorney, made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be a general power of attorney, or enduring power of attorney, made under this Act—section 163.

(b)does not know, or have reason to believe, the principal did not have capacity to make the document;

is entitled to rely on the certificate of the witness to the document as evidence of the principal’s capacity to make the document.

(2)A transaction between—

(a)an attorney purporting to use a power that is invalid; and

(b)someone else (the third person) who does not know of the invalidity;

is, in favour of the third person, as valid as if the power were not invalid.

(3)If the interest of a purchaser depends on whether a transaction between an attorney and a third person was valid because of subsection (2), it is conclusively presumed in favour of the purchaser that the third person did not at the material time know of the invalidity of the attorney’s power if—

(a)the third person makes a statutory declaration before or within 3 months after the completion of the purchase that the third person did not at the material time know of the invalidity of the attorney’s power; or

(b)the transaction between the attorney and the third person was completed within 1 year after the power of attorney was made.

(4)In subsections (2) and (3)—

attorney means an attorney under—

(a)a general power of attorney made under this Act; or

(b)an enduring document; or

(c)a power of attorney made otherwise than under this Act, whether before or after its commencement.

100Additional protection if unaware of invalidity in health context

(1)This section applies if a person, other than an attorney, in good faith and without knowing that an advance health directive or a power for a health matter under an enduring document is invalid or a direction in an advance health directive does not operate, acts in reliance on the advance health directive, power or direction.

Note—

See section 36 in relation to the operation of a direction in an advance health directive.

(2)The person does not incur any liability, either to the adult or anyone else, because of the invalidity of the advance health directive or power or the inoperative direction.

s 100 sub 2019 No. 9 s 72

101No less protection than if adult gave health consent

A person, other than an attorney, acting in accordance with a direction in an advance health directive, or a decision of an attorney for a health matter, is not liable for an act or omission to any greater extent than if the act or omission happened with the principal’s consent and the principal had capacity to consent.

102Protection of health provider unaware of advance health directive

A health provider is not affected by an adult’s advance health directive to the extent the health provider, acting in good faith, does not know the adult has an advance health directive.

s 102 amd 2019 No. 9 s 73

103Protection of health provider for non-compliance with advance health directive

(1)This section applies if a health provider has reasonable grounds to believe that a direction in an advance health directive is uncertain or inconsistent with good medical practice or that circumstances, including advances in medical science, have changed to the extent that the terms of the direction are inappropriate.

(2)The health provider does not incur any liability, either to the adult or anyone else, if the health provider does not act in accordance with the direction.

(3)However, if an attorney is appointed under the advance health directive, the health provider has reasonable grounds to believe that a direction in the advance health directive is uncertain only if, among other things, the health provider has consulted the attorney about the direction.

s 103 amd 2001 No. 95 s 26

104Protection for person carrying out forensic examination with consent

(1)A person carrying out a forensic examination of a principal to which an attorney for the principal has consented is not liable for an act or omission to any greater extent than if the act or omission happened with the principal’s consent and the principal had capacity to consent.

(2)A forensic examination, to which the attorney has consented, is not unlawful.

s 104 prev s 104 om 2000 No. 8 s 263 sch 3

pres s 104 ins 2003 No. 87 s 56

105Relief from personal liability

(1)If the court considers—

(a)an attorney is, or may be, personally liable for a breach of this Act; and

(b)the attorney has acted honestly and reasonably and ought fairly to be excused for the breach;

the court may relieve the attorney from all or part of the attorney’s personal liability for the breach.

(2)In this section—

attorney means—

(a)an attorney under a general power of attorney made under this Act; or

(b)an attorney under an enduring document; or

(c)an attorney under a power of attorney made otherwise than under this Act, whether before or after its commencement; or

(d)a statutory health attorney.

106Compensation and accounting for profits for failure to comply

(1)The court or tribunal may order an attorney for a principal to pay an amount to the principal or, if the principal has died, the principal’s estate—

(a)to compensate for a loss caused by the attorney’s failure to comply with this Act in the exercise of a power; or

(b)to account for any profits the attorney has accrued as a result of the attorney’s failure to comply with this Act in the exercise of a power.

(2)However, the court or tribunal may not order the attorney to make a payment under both subsection (1)(a) and (b) in relation to the same exercise of power.

(3)Subsection (1) applies even if the attorney is convicted of an offence in relation to the attorney’s failure.

(4)Also, subsection (1) applies even if the attorney’s appointment has ended.

(5)If the principal or attorney has died, an application for an order under subsection (1) must be made to the court or tribunal within 6 months after the death.

(6)If the principal and attorney have died, an application for an order under subsection (1) must be made to the court or tribunal within 6 months after the first death.

(7)The court or tribunal may extend the application time.

(8)An amount paid under an order under subsection (1) must be taken into account in assessing damages in a later civil proceeding in relation to the attorney’s exercise of the power.

(9)In this section—

attorney means an attorney under—

(a)a general power of attorney made under this Act; or

(b)an enduring document; or

(c)a power of attorney made otherwise than under this Act, whether before or after its commencement.

court means any court.

s 106 sub 2000 No. 8 s 263 sch 3; 2019 No. 9 s 74

107Power to apply to court for compensation for loss of benefit in estate

(1)This section applies if a person’s benefit in a principal’s estate under the principal’s will, on intestacy, or by another disposition taking effect on the principal’s death, is lost because of a sale or other dealing with the principal’s property by an attorney of the principal.

(1A)This section applies even if the person whose benefit is lost is the attorney by whose dealing the benefit is lost.

(2)The person, or the person’s personal representative, may apply to the Supreme Court for compensation out of the principal’s estate.

(3)The court may order that the person, or the person’s estate, be compensated out of the principal’s estate as the court considers appropriate but the compensation must not exceed the value of the lost benefit.

(4)The Succession Act 1981, sections 41(2) to (8), (10) and (11) and 44 apply to an application and an order made on it as if the application was an application under part 4 of that Act by a person entitled to make an application.

(5)In this section—

attorney means an attorney under—

(a)a general power of attorney made under this Act; or

(b)an enduring document; or

(c)a power of attorney made otherwise than under this Act, whether before or after its commencement.

s 107 amd 2000 No. 8 s 263 sch 3

108Powers extend to powers of attorney made otherwise than under this Act

(1)The court’s powers under this Act are not limited to general powers of attorney made under this Act and enduring documents.

(2)The court’s powers under this Act extend to powers of attorney made otherwise than under this Act, whether made before or after its commencement.

109Inherent jurisdiction and litigation guardian process not affected

(1)This Act does not affect the court’s inherent jurisdiction, including its parens patriae jurisdiction, or the powers the court has other than under this Act.

Note—

This jurisdiction is based on the need to protect those who lack the capacity to protect themselves. It allows the Supreme Court to appoint attorneys for people who, because of mental illness, intellectual disability, illness, accident or old age, are unable to adequately safeguard their own interests.

(2)This Act does not affect rules of court of the Supreme Court, District Court or Magistrates Courts about a litigation guardian for a person under a legal incapacity.

s 109 amd 2000 No. 8 s 263 sch 3

109AQueensland Civil and Administrative Tribunal also has jurisdiction and powers about enduring documents

(1)The tribunal is given the same jurisdiction and powers for enduring documents as the Supreme Court.

(2)For subsection (1), this Act applies, with necessary changes, as if references to the Supreme Court were references to the tribunal.

s 109A ins 2000 No. 8 s 263 sch 3; 2009 No. 24 s 1569

110Application and participation

(1)An application may be made to the court for a declaration, order, direction, recommendation or advice about something in, or related to, this Act.

(2)The application may be by the principal concerned or another interested person unless this Act states otherwise.

(3)Each of the following persons may apply to the court for it to do something under this chapter about a power of attorney, enduring power of attorney or advance health directive, or the exercise of an attorney’s power—

(a)the principal;

(b)a member of the principal’s family;

(c)an attorney;

(d)the public guardian or public trustee;

(e)if the document is an advance health directive or the application involves power for a health matter—the public guardian or a health provider of the principal;

(f)an interested person.

(4)A person joined as a party to a proceeding under this Act or a person the court considers an interested person may participate in the proceeding.

(5)In this section—

family, of a principal, consists of the following members—

(a)the principal’s spouse;

(b)each of the principal’s children who is 18 years or more (including a stepchild, an adopted child, and a person for whom the principal was foster-parent or guardian when the person was a child);

(c)each of the principal’s parents (including a step-parent, adoptive parent, foster-parent and guardian);

(d)if there is no person mentioned in paragraph (a), (b) or (c) who is reasonably available—each of the principal’s siblings who is 18 years or more (including a step-sibling, adopted sibling, and foster-sibling).

s 110 amd 2000 No. 8 s 263 sch 3; 2014 No. 26 s 270

111Determination of capacity

The court may make a declaration about a person’s capacity.

111AApplication of presumption of capacity

(1)If, in performing a function or exercising a power under this Act, the court or tribunal is required to make a decision about an adult’s capacity for a matter, the court or tribunal is to presume the adult has capacity for the matter until the contrary is proven.

(2)If a declaration by the court or tribunal that an adult has impaired capacity for a matter is in force, a person or other entity that performs a function or exercises a power under this Act is entitled to rely on the declaration to presume that the adult does not have capacity for the matter.

s 111A ins 2019 No. 9 s 75

112Effect of declaration about capacity to enter contract

A declaration about whether a person had capacity to enter a contract is binding in a subsequent proceeding in which the validity of the contract is in issue.

113Declaration about validity

(1)The court may decide the validity of a power of attorney, enduring power of attorney or advance health directive.

(2)The court may declare a document mentioned in subsection (1) invalid if the court is satisfied—

(a)the principal did not have the capacity necessary to make it; or

Note—

See sections 41 (Principal’s capacity to make an enduring power of attorney) and 42 (Principal’s capacity to make an advance health directive).

(b)it does not comply with the other requirements of this Act; or

Note—

See chapter 2, part 2 (Making a power of attorney other than an enduring power of attorney) and chapter 3, part 4 (Making an enduring document), particularly section 44 (Formal requirements).

(c)it is invalid for another reason, for example, the principal was induced to make it by dishonesty or undue influence.

(3)If the court declares the document invalid, the court may, at the same time, appoint 1 or more attorneys for the principal.

Note—

The court is not limited to appointing an eligible attorney (defined in section 29).

114Effect of invalidity

If the court declares a document invalid under section 113, the document is void from the start.

115Declaration about commencement of power

The court may make a declaration that—

(a)a power, under a power of attorney, enduring power of attorney or advance health directive, has begun; or

(b)the principal has impaired capacity for a matter or all matters.

116Order removing attorney or changing or revoking document

The court may, by order—

(a)remove an attorney and appoint a new attorney to replace the removed attorney; or

Note—

The court is not limited to appointing an eligible attorney (defined in section 29).

(b)remove a power from an attorney and give the removed power to another attorney or to a new attorney; or

(c)change the terms of a power of attorney, enduring power of attorney or advance health directive; or

(d)revoke all or part of a document mentioned in paragraph (c).

117Changed circumstances as basis for change or revocation

Without limiting the grounds on which the court may make an order changing the terms of a power of attorney, enduring power of attorney or advance health directive, or revoking all or part of 1 of these documents, the court may make the order if the court considers the principal’s circumstances or other circumstances (including, for a health power, advances in medical science) have changed to the extent that 1 or more terms of the document are inappropriate.

118Advice, directions and recommendations etc.

(1)On an application about a matter, the court may give directions or advice or make a recommendation, order or declaration about the matter or another matter related to this Act, including about—

(a)the interpretation of the terms of, or another issue involving, a power of attorney, enduring power of attorney or advance health directive; or

(b)the exercise of an attorney’s power or another issue involving an attorney’s power.

(2)Without limiting subsection (1), the court may, by order and subject to the terms the court considers appropriate, authorise an attorney, either generally or in a specific case, to undertake a transaction that the attorney is not otherwise authorised to undertake or may not otherwise be authorised to undertake, if the court is satisfied the transaction would be in accordance with the general principles.

(3)Also, if an attorney undertakes a transaction mentioned in subsection (2) that has not been authorised under that subsection, the court may retrospectively authorise the transaction.

(4)A transaction authorised under subsection (3) is taken to be, and to have always been, as valid as if it had been undertaken under an authorisation given by the court before the attorney undertook the transaction.

s 118 amd 2000 No. 8 s 263 sch 3; 2019 No. 9 s 76

120Court may proceed without all relevant material

(1)If the court considers urgent or special circumstances justify it doing so, the court may proceed to decide a matter on the information before it without receiving all relevant material.

(2)If all the participants in a proceeding agree, the court may also proceed to decide a matter in the proceeding on the information before it when the agreement was reached without receiving all relevant material.

(3)Before the participants agree, the court must ensure they are aware of the material on which the matter will be decided.

121Report by public guardian or public trustee

(1)The court may—

(a)receive in evidence in a proceeding a written report by the public guardian or public trustee on a matter in the proceeding; and

(b)have regard to the matter contained in the report.

(2)If the court receives a report in evidence in a proceeding, the principal concerned in the proceeding and each participant in the proceeding must be given a copy of the report unless the court directs otherwise.

s 121 amd 2014 No. 26 s 271

122Records and audit

(1)For an attorney for a financial matter under an enduring power of attorney, the court or the tribunal may make an order that—

(a)the attorney files in the court or the tribunal, and serves on the applicant, a summary of receipts and expenditure under the power for a specified period; or

(b)the attorney files in the court or the tribunal, and serves on the applicant, more detailed accounts of dealings and transactions under the power for a specified period; or

(c)the accounts be audited by an auditor appointed by the court or the tribunal and that a copy of the auditor’s report be given to the court or the tribunal and the applicant; or

(d)the attorney present a plan of management for approval.

(2)The court or the tribunal may make the order on its own initiative or on the application of the principal or another interested person.

(3)The court or the tribunal may make an order about payment of the auditor’s costs, including security for the costs.

(4)This section applies even if—

(a)the enduring power of attorney has been revoked; or

(b)the principal has died.

s 122 amd 2019 No. 9 s 77

123Court may dismiss frivolous etc. applications

(1)The court may dismiss an application if the court is satisfied the application is—

(a)frivolous, trivial or vexatious; or

(b)misconceived or lacking in substance.

(2)If the court considers it appropriate, the court may also—

(a)order that the applicant pay the costs of another participant in the proceeding; and

(b)direct that the applicant must not, without the court’s leave, make a subsequent application to the court of a type stated in the direction.

(3)The court may discharge or change a direction under subsection (2).

s 123 amd 2003 No. 87 s 57

124Written reasons for decision

On application by a person the court considers has a sufficient interest in obtaining reasons for its decision, the court must give written reasons for the decision within 28 days after the application.

125Costs

(1)The costs of a proceeding are within the court’s discretion.

(2)However, unless the court otherwise orders, costs follow the event.

159Voluntary assisted dying

Voluntary assisted dying under the Voluntary Assisted Dying Act 2021 is not a matter to which this Act applies.

s 159 prev s 159 om 2000 No. 8 s 263 sch 3

pres s 159 ins 2021 No. 17 s 177

160Delegation of public trustee’s powers under this Act

(1)If the public trustee has power under this Act for a financial matter for an adult, the public trustee may delegate the power to—

(a)an appropriately qualified member of the public trustee’s staff; or

(b)for day-to-day decisions about the matter—

(i)an appropriately qualified carer of the adult; or

(ii)an attorney under an enduring document; or

(iii)a person who would be eligible to be the adult’s statutory health attorney; or

(iv)another person the public trustee considers appropriately qualified to exercise the power.

(2)However, the public trustee may not delegate the public trustee’s powers mentioned in subsection (1)(b) to—

(a)the public guardian; or

(b)a paid carer for the adult.

(3)In this section—

day-to-day decisions, for a financial matter for an adult, means minor, uncontroversial decisions about day-to-day issues that involve no more than a low risk to the adult.

s 160 prev s 160 om 2000 No. 8 s 263 sch 3

pres s 160 ins 2019 No. 9 s 78

161Chief executive may approve forms

The chief executive may approve forms for use under this Act.

162Regulation-making power

The Governor in Council may make regulations under this Act.

ch 9 hdg sub 2000 No. 8 s 263 sch 3

ch 9 pt 1 hdg sub 2000 No. 8 s 263 sch 3

163Powers of attorney under Property Law Act 1974

Except where this Act expressly provides otherwise, on the commencement of this section, a general power of attorney, or enduring power of attorney, made under the Property Law Act 1974 and of force and effect immediately before the commencement of this section is taken to be a general power of attorney, or enduring power of attorney, made under this Act.

ch 9 pt 2 hdg ins 2000 No. 8 s 263 sch 3

164Subject to committee or manager

(1)If a person, other than an attorney, is committee or manager of a principal, or all or part of a principal’s estate, the attorney may exercise power for the principal only to the extent authorised by the committee or manager.

(2)In this section—

attorney includes a statutory health attorney.

s 164 ins 2000 No. 8 s 263 sch 3

ch 9 pt 3 hdg ins 2001 No. 95 s 27

amd 2007 No. 36 s 2 sch

165References to special life-sustaining measures

A reference in an enduring document of force and effect immediately before the commencement of this section to special life-sustaining measures or a special life-sustaining measure, however described, is, from the commencement of this section, taken to be a reference to life-sustaining measures or a life-sustaining measure.

s 165 ins 2001 No. 95 s 27

166Power for health matters excludes power for withholding or withdrawal of life-sustaining measure

An enduring document of force and effect immediately before the commencement of this section that authorises an attorney to exercise power for health matters does not, from the commencement of this section, authorise the attorney to exercise power for the withholding or withdrawal of a life-sustaining measure.

s 166 ins 2001 No. 95 s 27

ch 9 pt 4 hdg ins 2019 No. 9 s 79

167Definitions for part

In this part—

amended, for a provision of this Act, means the provision as amended by the amendment Act.

amendment Act means the Guardianship and Administration and Other Legislation Amendment Act 2019.

s 167 ins 2019 No. 9 s 79

168Existing appointment—eligible attorney (enduring power of attorney)

(1)This section applies in relation to a person who, immediately before the commencement, held an appointment as an attorney for a matter under an enduring power of attorney if—

(a)the person was an eligible attorney for the matter under section 29(1) as in force when the person was appointed; but

(b)the person would not be an eligible attorney for the matter under amended section 29(1).

(2)To remove any doubt, it is declared that amended section 29(1) does not affect the person’s appointment.

s 168 ins 2019 No. 9 s 79

169Existing appointment—eligible attorney (advance health directive)

(1)This section applies in relation to a person who, immediately before the commencement, held an appointment as an attorney for a matter under an advance health directive if—

(a)the person was an eligible attorney for the matter under section 29(2) as in force when the person was appointed; but

(b)the person would not be an eligible attorney for the matter under amended section 29(2).

(2)On the commencement, the advance health directive is revoked to the extent it gives power to the attorney.

s 169 ins 2019 No. 9 s 79

170Existing appointment—more than 4 joint attorneys (enduring power of attorney)

(1)This section applies if, immediately before the commencement, more than 4 persons were joint attorneys for a matter under an enduring power of attorney.

(2)Section 43(3), as inserted by the amendment Act, does not apply to the enduring power of attorney in relation to that matter.

s 170 ins 2019 No. 9 s 79

171Existing certified copy of enduring document

(1)This section applies to a copy of an enduring document certified under section 45 before the commencement as a copy of the enduring document.

(2)Section 45 as in force immediately before the commencement continues to apply to the copy.

s 171 ins 2019 No. 9 s 79

172Application of ss 61A–61D

Sections 61A to 61D apply—

(a)in relation to the will of a principal who dies after the commencement; and

(b)regardless of whether the sale, mortgage, charge, disposition of, or other dealing with, property by the attorney happened before or after the commencement.

s 172 ins 2019 No. 9 s 79

173Validation of delegation

(1)This section applies to a delegation of a power by the public trustee of a type described in, and to a person mentioned in, section 160 before the commencement.

(2)The delegation is taken to be, and always to have been, as valid and effective as it would have been if it were made after the commencement of section 160.

s 173 ins 2019 No. 9 s 79

174Enduring documents started

(1)This section applies if, immediately before the commencement, the preparation of an enduring document had been started but not finished.

(2)This Act, as amended by the amendment Act, applies to the preparation of the enduring document.

s 174 ins 2019 No. 9 s 79

175Existing proceedings

(1)This section applies if, immediately before the commencement, a proceeding under this Act had been started but not finished.

(2)The proceeding is to continue as if the amendment Act had not been enacted.

s 175 ins 2019 No. 9 s 79

ch 9 pt 5 hdg ins 2021 No. 23 s 48

176Definitions for part

In this part—

amending Act means the Justice and Other Legislation Amendment Act 2021.

repealed regulation means the repealed Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 as in force immediately before its repeal.

s 176 ins 2021 No. 23 s 48

177Repealed regulation continues to apply to general power of attorney in particular circumstances

(1)This section applies in relation to a document that is a general power of attorney if—

(a)before the commencement, the document was signed by a signatory or substitute signatory, and a person witnessed the document, under the repealed regulation; and

(b)immediately before the commencement—

(i)the person had not confirmed the document as the document witnessed by the person under the repealed regulation; or

(ii)a special witness had not signed a certificate for the document in accordance with the repealed regulation; or

(iii)the person had not complied with another requirement relating to the document under the repealed regulation.

(2)Despite the repeal of the repealed regulation, the repealed regulation continues to apply to the person in relation to the document as if the amending Act had not been enacted.

s 177 ins 2021 No. 23 s 48

178Signing general power of attorney for corporation

(1)This section applies if—

(a)2 or more persons (each a required signatory) are to sign a general power of attorney for a corporation; and

(b)before the commencement, at least 1 of the required signatories had signed the general power of attorney under the repealed regulation.

(2)From the commencement and despite the repeal of the repealed regulation—

(a)any required signatory who has not signed the general power of attorney may sign the general power of attorney in accordance with the repealed regulation as if the amending Act had not been enacted; and

(b)any requirements under the repealed regulation continue to apply in relation to the general power of attorney as if the amending Act had not been enacted.

s 178 ins 2021 No. 23 s 48

179Repealed regulation continues to apply to particular general power of attorney

(1)This section applies to a general power of attorney made, signed or witnessed under the repealed regulation, including a general power of attorney to which section 177 or 178 applies.

(2)Despite the repeal of the repealed regulation, the repealed regulation, sections 22 to 26 continues to apply in relation to the general power of attorney as if the amending Act had not been enacted.

s 179 ins 2021 No. 23 s 48

180Certificate signed by nurse practitioner that is included in advance health directive

(1)This section applies to an advance health directive made after the commencement.

(2)To remove any doubt, it is declared that a nurse practitioner may, under section 44(6), sign and date a certificate that is included in the advance health directive whether or not it is stated in the approved form for the advance health directive that the nurse practitioner may sign the certificate.

(3)In this section—

nurse practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the nursing profession, other than as a student, whose registration is endorsed as being qualified to practise as a nurse practitioner.

s 180 ins 2021 No. 23 s 48

schedule 3

sch 2 pt 1 hdg sub 2000 No. 8 s 263 sch 3

1Financial matter

A financial matter, for a principal, is a matter relating to the principal’s financial or property matters, including, for example, a matter relating to 1 or more of the following—

(a)paying maintenance and accommodation expenses for the principal and the principal’s dependants, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the principal or a dependant of the principal;

(b)paying the principal’s debts, including any fees and expenses to which an administrator is entitled under a document made by the principal or under a law;

(c)receiving and recovering money payable to the principal;

(d)carrying on a trade or business of the principal;

(e)performing contracts entered into by the principal;

(f)discharging a mortgage over the principal’s property;

(g)paying rates, taxes, insurance premiums or other outgoings for the principal’s property;

(h)insuring the principal or the principal’s property;

(i)otherwise preserving or improving the principal’s estate;

(j)investing for the principal in authorised investments;

(k)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;

(l)undertaking a real estate transaction for the principal;

(m)dealing with land for the principal under the Land Act 1994 or Land Title Act 1994;

(n)undertaking a transaction for the principal involving the use of the principal’s property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the principal;

(o)a legal matter relating to the principal’s financial or property matters;

(p)withdrawing money from, or depositing money into, the principal’s account with a financial institution.

sch 2 s 1 sub 2000 No. 8 s 263 sch 3

amd 2002 No. 34 s 42; 2003 No. 87 s 58; 2004 No. 43 s 93; 2007 No. 36 s 2 sch

sch 2 pt 2 hdg sub 2000 No. 8 s 263 sch 3

2Personal matter

A personal matter, for a principal, is a matter, other than a special personal matter or special health matter, relating to the principal’s care, including the principal’s health care, or welfare, including, for example, a matter relating to 1 or more of the following—

(a)where the principal lives;

(b)with whom the principal lives;

(ba)services provided to the principal;

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

(d)what education or training the principal undertakes;

(e)whether the principal applies for a licence or permit;

(f)day-to-day issues, including, for example, diet and dress;

(g)whether to consent to a forensic examination of the principal;

Note—

See also section 104 (Protection for person carrying out forensic examination with consent).

(h)health care of the principal;

(i)a legal matter not relating to the principal’s financial or property matters;

(j)who may have access visits to, or other contact with, the principal;

(k)advocacy relating to the care and welfare of the principal.

sch 2 s 2 sub 2000 No. 8 s 263 sch 3

amd 2003 No. 87 s 59; 2016 No. 9 s 57; 2019 No. 9 s 81

3Special personal matter

A special personal matter, for a principal, is a matter relating to 1 or more of the following—

(a)making or revoking the principal’s will;

(b)making or revoking a power of attorney, enduring power of attorney or advance health directive of the principal;

(c)exercising the principal’s right to vote in a Commonwealth, State or local government election or referendum;

(d)consenting to adoption of a child of the principal under 18 years;

(e)consenting to marriage of the principal;

(f)consenting to the principal entering into a civil partnership;

(g)consenting to the principal terminating a civil partnership;

(h)entering into, or agreeing to enter into, a surrogacy arrangement under the Surrogacy Act 2010;

(i)consenting to the making or discharge of a parentage order under the Surrogacy Act 2010;

(j)entering a plea on a criminal charge for the principal;

(k)applying, or consenting to an application, for a cultural recognition order or applying for a discharge order under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020.

sch 1 s 3 sub 2000 No. 8 s 263 sch 3

amd 2010 No. 2 s 99; 2011 No. 46 s 71; 2012 No. 12 s 59 sch pt 2; 2015 No. 33 s 52 (2) sch pt 2; 2019 No. 9 s 82; 2020 No. 33 s 154

4Health matter

A health matter, for a principal, is a matter relating to health care, other than special health care, of the principal.

sch 2 s 4 sub 2000 No. 8 s 263 sch 3

5Health care

(1)Health care, of a principal, is care or treatment of, or a service or a procedure for, the principal—

(a)to diagnose, maintain, or treat the principal’s physical or mental condition; and

(b)carried out by, or under the direction or supervision of, a health provider.

(2)Health care, of a principal, includes withholding or withdrawal of a life-sustaining measure for the principal if the commencement or continuation of the measure for the principal would be inconsistent with good medical practice.

(3)Health care, of a principal, does not include—

(a)first aid treatment; or

(b)a non-intrusive examination made for diagnostic purposes; or

(c)the administration of a pharmaceutical drug if—

(i)a prescription is not needed to obtain the drug; and

(ii)the drug is normally self-administered; and

(iii)the administration is for a recommended purpose and at a recommended dosage level; or

(d)psychosurgery for the principal.

Example of paragraph (b)—

a visual examination of a principal’s mouth, throat, nasal cavity, eyes or ears

sch 2 s 5 sub 2000 No. 8 s 263 sch 3

amd 2001 No. 95 s 29; 2016 No. 5 s 917 (1)

5ALife-sustaining measure

(1)A life-sustaining measure is health care intended to sustain or prolong life and that supplants or maintains the operation of vital bodily functions that are temporarily or permanently incapable of independent operation.

(2)Without limiting subsection (1), each of the following is a life-sustaining measure—

(a)cardiopulmonary resuscitation;

(b)assisted ventilation;

(c)artificial nutrition and hydration.

(3)A blood transfusion is not a life-sustaining measure.

sch 2 s 5A ins 2001 No. 95 s 30

5BGood medical practice

Good medical practice is good medical practice for the medical profession in Australia having regard to—

(a)the recognised medical standards, practices and procedures of the medical profession in Australia; and

(b)the recognised ethical standards of the medical profession in Australia.

sch 2 s 5B ins 2001 No. 95 s 30

6Special health matter

A special health matter, for a principal, is a matter relating to special health care of the principal.

Note—

An attorney or guardian may not be given power for a special health matter.

However, a principal may give a direction about a special health matter in an advance health directive. Alternatively, in particular circumstances the tribunal may consent to special health care. See the Guardianship and Administration Act 2000, section 68 (Special health care).

sch 2 s 6 sub 2000 No. 8 s 263 sch 3

7Special health care

Special health care, of a principal, is health care of the following types—

(a)removal of tissue from the principal while alive for donation to someone else;

Note—

For the situation after the principal has died, see the Transplantation and Anatomy Act 1979, particularly section 22.

(b)sterilisation of the principal;

(c)termination of a pregnancy of the principal;

(d)participation by the principal in special medical research or experimental health care;

(e)electroconvulsive therapy or a non-ablative neurosurgical procedure for the principal;

(f)prescribed special health care of the principal.

sch 2 s 7 sub 2000 No. 8 s 263 sch 3

amd 2001 No. 95 s 31; 2016 No. 5 s 917 (2)

8Removal of tissue for donation

(1)For an adult, removal of tissue for donation to someone else includes removal of tissue from the principal so laboratory reagents, or reference and control materials, derived completely or partly from pooled human plasma may be given to the other person.

(2)Tissue is—

(a)an organ, blood or part of a human body; or

(b)a substance that may be extracted from an organ, blood or part of a human body.

sch 2 s 8 sub 2000 No. 8 s 263 sch 3

9Sterilisation

(1)Sterilisation is health care of a principal who is, or is reasonably likely to be, fertile that is intended, or reasonably likely, to make the principal, or ensure the principal is, permanently infertile.

Examples of sterilisation—

endometrial ablation, hysterectomy, tubal ligation and vasectomy

(2)Sterilisation does not include health care primarily to treat organic malfunction or disease of the principal.

sch 2 s 9 sub 2000 No. 8 s 263 sch 3

10Termination

Termination, of a pregnancy of a principal, does not include health care primarily to treat organic malfunction or disease of the principal.

sch 2 s 10 sub 2000 No. 8 s 263 sch 3

11Primary reason for treatment

Health care primarily to treat organic malfunction or disease, of a principal, is health care without which an organic malfunction or disease of the principal is likely to cause serious or irreversible damage to the principal’s physical health.

Examples—

1Health care involving sterilisation may be primarily to treat organic malfunction or disease if the principal has cancer affecting the reproductive system or cryptorchidism.

2A procedure involving termination of a pregnancy may be primarily to treat organic malfunction if the principal is a pregnant woman requiring abdominal surgery for injuries sustained in an accident.

sch 2 s 11 sub 2000 No. 8 s 263 sch 3

12Special medical research or experimental health care

(1)Special medical research or experimental health care, for a principal, means—

(a)medical research or experimental health care relating to a condition the principal has or to which the principal has a significant risk of being exposed; or

(b)medical research or experimental health care intended to gain knowledge that can be used in the diagnosis, maintenance or treatment of a condition the principal has or has had.

(2)Special medical research or experimental health care does not include—

(a)psychological research; or

(b)an approved clinical research.

sch 2 s 12 sub 2000 No. 8 s 263 sch 3

13Approved clinical research

(1)Clinical research is—

(a)medical research intended to diagnose, maintain or treat a condition affecting the participants in the research; or

(b)a trial of drugs, devices, biologicals or techniques involving the carrying out of health care that may include the giving of placebos to some of the participants in the trial.

(1A)However, a comparative assessment of health care already proven to be beneficial is not medical research.

Examples—

•a comparative assessment of the effects of different forms of administration of a drug proven to be beneficial in the treatment of a condition, for example, a continuous infusion, as opposed to a once-a-day administration, of the drug

•a comparative assessment of the angle at which to set a tilt-bed to best assist a principal’s breathing.

(2)Approved clinical research is clinical research approved by the tribunal under the Guardianship and Administration Act 2000, section 74C.

sch 2 s 13 ins 2000 No. 8 s 263 sch 3

amd 2003 No. 87 s 60; 2019 No. 9 s 83

14Electroconvulsive therapy

Electroconvulsive therapy is the application of electric current to specific areas of the head to produce a generalised seizure that is modified by general anaesthesia and the administration of a muscle relaxing agent.

sch 2 s 14 ins 2000 No. 8 s 263 sch 3

15Psychosurgery

Psychosurgery is a procedure on the brain, that involves deliberate damage to or removal of brain tissue, for the treatment of a mental illness.

sch 2 s 15 ins 2000 No. 8 s 263 sch 3

sub 2016 No. 5 s 917 (3)

15ANon-ablative neurosurgical procedure

A non-ablative neurosurgical procedure is a procedure on the brain, that does not involve deliberate damage to or removal of brain tissue, for the treatment of a mental illness.

sch 2 s 15A ins 2016 No. 5 s 917 (4)

17Prescribed special health care

Prescribed special health care means health care prescribed under the Guardianship and Administration Act 2000.

sch 2 s 17 ins 2000 No. 8 s 263 sch 3

sch 2 pt 3 hdg ins 2000 No. 8 s 263 sch 3

18Legal matter

A legal matter, for a principal, includes a matter relating to—

(a)use of legal services to obtain information about the principal’s legal rights; and

(b)use of legal services to undertake a transaction; and

(c)use of legal services to bring or defend a proceeding before a court, tribunal or other entity, including an application under the Succession Act 1981, part 4 or an application for compensation arising from a compulsory acquisition; and

Note—

This enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person’s estate if adequate provision is not made from the estate for the dependant’s proper maintenance and support.

(d)bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding.

sch 2 s 18 ins 2000 No. 8 s 263 sch 3

sch 2 amd 2000 No. 8 s 263 sch 3

section 3

accepted method, for electronically signing a general power of attorney, for chapter 2, part 3A, see section 24A.

sch 3 def accepted method ins 2021 No. 23 s 49

administrator means an administrator appointed under the Guardianship and Administration Act 2000.

sch 3 def administrator ins 2000 No. 8 s 263 sch 3

adult guardian ...

sch 3 def adult guardian sub 2000 No. 8 s 263 sch 3

om 2014 No. 26 s 272 (1)

advance health directive see section 35.

approved clinical research see schedule 2, section 13.

sch 3 def approved clinical research ins 2000 No. 8 s 263 sch 3

approved form means a form approved by the chief executive under section 161.

attorney means—

(a)an attorney under a power of attorney, enduring power of attorney or advance health directive; or

(b)a statutory health attorney.

business, for chapter 2, part 3A, see section 24A.

sch 3 def business ins 2021 No. 23 s 49

capacity, for a person for a matter, means the person is capable of—

(a)understanding the nature and effect of decisions about the matter; and

(b)freely and voluntarily making decisions about the matter; and

(c)communicating the decisions in some way.

Note—

Under the Guardianship and Administration Act 2000, section 146(3), in deciding whether an individual is capable of communicating decisions in some way, the tribunal must investigate the use of all reasonable ways of facilitating communication, which may include symbol boards or signing.

sch 3 def capacity sub 2000 No. 8 s 263 sch 3

amd 2019 No. 9 s 84 (3)

clinical research see schedule 2, section 13(1).

sch 3 def clinical research ins 2000 No. 8 s 263 sch 3

close friend, of 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.

commissioner for declarations see the Justices of the Peace and Commissioners for Declarations Act 1991.

conflict transaction see section 73.

corporation, for chapter 2, part 3A, see section 24A.

sch 3 def corporation ins 2021 No. 23 s 49

counterpart, for a document, for chapter 2, part 3A, see section 24B.

sch 3 def counterpart ins 2021 No. 23 s 49

court means the Supreme Court.

de facto spouse ...

sch 3 def de facto spouse om 2002 No. 74 s 90 sch

dependant, of a principal, means a person who is completely or mainly dependent on the principal.

document, for chapter 2, part 3A, see section 24A.

sch 3 def document ins 2021 No. 23 s 49

electroconvulsive therapy see schedule 2, section 14.

sch 3 def electroconvulsive therapy ins 2000 No. 8 s 263 sch 3

electronically sign, a document, for chapter 2, part 3A, see section 24A.

sch 3 def electronically sign ins 2021 No. 23 s 49

electronic document, for chapter 2, part 3A, see section 24A.

sch 3 def electronic document ins 2021 No. 23 s 49

eligible attorney see section 29.

eligible signer see section 30.

eligible witness see section 31.

enduring document see section 28.

enduring power of attorney see section 32.

financial matter see schedule 2, section 1.

forensic examination of a principal means a medical or dental procedure for the principal that is carried out for forensic purposes, other than because the principal is suspected of having committed a criminal offence.

sch 3 def forensic examination ins 2003 No. 87 s 61

general power of attorney, for chapter 2, part 3A, see section 24A.

sch 3 def general power of attorney ins 2021 No. 23 s 49

general power of attorney made under this Act see section 8.

general principles see section 6C.

sch 3 def general principles amd 2019 No. 9 s 84 (4)

good medical practice see schedule 2, section 5B.

sch 3 def good medical practice ins 2001 No. 95 s 33 (2)

guardian means a guardian appointed under the Guardianship and Administration Act 2000.

sch 3 def guardian ins 2000 No. 8 s 263 sch 3

health care see schedule 2, section 5.

health care primarily to treat organic malfunction or disease see schedule 2, section 11.

health care principles see section 6D.

sch 3 def health care principles ins 2019 No. 9 s 84 (2)

health care principle ...

sch 3 def health care principle om 2019 No. 9 s 84 (1)

health matter see schedule 2, section 4.

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

Example—

dentist

impaired capacity, for a person for a matter, means the person does not have capacity for the matter.

information, for chapter 2, part 3A, see section 24A.

sch 3 def information ins 2021 No. 23 s 49

insolvent includes external administration (for example, liquidation, receivership or compromise entered into with creditors) under the Corporations Act or a similar law of a foreign jurisdiction.

sch 3 def insolvent amd 2001 No. 45 s 29 sch 3

interested person, for another person, means a person who has a sufficient and genuine concern for the rights and interests of the other person.

sch 3 def interested person sub 2000 No. 8 s 263 sch 3; 2019 No. 9 s 84 (1)–(2)

jurisdiction means—

(a)another State; or

(b)New Zealand.

sch 3 def jurisdiction ins 2019 No. 9 s 84 (2)

legal matter see schedule 2, section 18.

sch 3 def legal matter ins 2000 No. 8 s 263 sch 3

life-sustaining measure see schedule 2, section 5A.

sch 3 def life-sustaining measure ins 2001 No. 95 s 33 (2)

life-sustaining measures ...

sch 3 def life-sustaining measures om 2000 No. 8 s 263 sch 3

make, in relation to a document, for chapter 2, part 3A, see section 24A.

sch 3 def make ins 2021 No. 23 s 49

matter includes a type of matter.

Example—

A reference in section 10(1)(a) to a person appointing an attorney to exercise power for a matter includes a reference to a person appointing an attorney to exercise power for a type of matter (for example, particular, but not all, financial matters).

sch 3 def matter amd 2000 No. 8 s 263 sch 3

non-ablative neurosurgical procedure see schedule 2, section 15A.

sch 3 def non-ablative neurosurgical procedure ins 2016 No. 5 s 918

paid carer, for a principal, means someone who—

(a)performs services for the principal’s care; and

(b)receives remuneration from any source for the services, other than—

(i)a carer payment or other benefit received from the Commonwealth or a State for providing home care for the principal; or

(ii)remuneration attributable to the principle that damages may be awarded by a court for voluntary services performed for the principal’s care.

Note—

This principle was established in Griffiths v Kerkemeyer (1977) 139 CLR 161—see Queensland Law Reform Commission Report No. 45, ‘The assessment of damages in personal injury and wrongful death litigation, Griffiths v Kerkemeyer, Section 15C Common Law Practice Act 1867’, October 1993.

sch 3 def paid carer amd 2011 No. 45 s 217 sch 1A

personal matter see schedule 2, section 2.

physical document, for chapter 2, part 3A, see section 24A.

sch 3 def physical document ins 2021 No. 23 s 49

power, for a matter, means power to make all decisions about the matter and otherwise exercise the power.

power of attorney given as security see section 10(1).

prescribed special health care see schedule 2, section 17.

sch 3 def prescribed special health care ins 2000 No. 8 s 263 sch 3

principal means—

(a)in the context of a power of attorney, enduring power of attorney or advance health directive or an attorney under 1 of these documents—the person who made the document or appointed the attorney; or

(b)in the context of a statutory health attorney—the person for whom the statutory health attorney is statutory health attorney.

psychosurgery see schedule 2, section 15.

sch 3 def psychosurgery ins 2000 No. 8 s 263 sch 3

public guardian means the public guardian under the Public Guardian Act 2014.

sch 3 def public guardian ins 2014 No. 26 s 272 (2)

relation, of a person, means—

(a)a spouse of the first person; or

(b)a person who is related to the first person by blood, marriage or adoption or because of a de facto relationship, foster relationship or a relationship arising because of a legal arrangement; or

Example of legal arrangement—

1court order for custody

2trust arrangement between trustee and beneficiary

(c)a person on whom the first person is completely or mainly dependent; or

(d)a person who is completely or mainly dependent on the first person; or

(e)a person who is a member of the same household as the first person.

removal of tissue for donation see schedule 2, section 8(1).

resident has the meaning given by the Residential Services (Accreditation) Act 2002.

sch 3 def resident ins 2004 No. 43 s 94

residential service has the meaning given by the Residential Services (Accreditation) Act 2002.

sch 3 def residential service ins 2004 No. 43 s 94

seal, of a corporation, for chapter 2, part 3A, see section 24A.

sch 3 def seal ins 2021 No. 23 s 49

service provider has the meaning given by the Residential Services (Accreditation) Act 2002.

sch 3 def service provider ins 2004 No. 43 s 94

sign, a document, for chapter 2, part 3A, see section 24A.

sch 3 def sign ins 2021 No. 23 s 49

special health care see schedule 2, section 7.

special health matter see schedule 2, section 6.

special life-sustaining measures ...

sch 3 def special life-sustaining measures ins 2000 No. 8 s 263 sch 3

om 2001 No. 95 s 33 (1)

special medical research or experimental health care see schedule 2, section 12.

sch 3 def special medical research or experimental health care ins 2000 No. 8 s 263 sch 3

special personal matter see schedule 2, section 3.

spouse ...

sch 3 def spouse om 2002 No. 74 s 90 sch

statutory corporation, for chapter 2, part 3A, see section 24A.

sch 3 def statutory corporation ins 2021 No. 23 s 49

statutory health attorney see section 63.

sterilisation see schedule 2, section 9.

support network, for an adult, consists of the following people—

(a)members of the adult’s family;

(b)close friends of the adult;

(c)other people the tribunal decides provide support to the adult.

sch 3 def support network ins 2019 No. 9 s 84 (2)

term includes condition, limitation and instruction.

termination see schedule 2, section 10.

tissue see schedule 2, section 8(2).

tribunal means QCAT.

sch 3 def tribunal ins 2000 No. 8 s 263 sch 3

sub 2009 No. 24 s 1570

witness, a document, for chapter 2, part 3A, see section 24A.

sch 3 def witness ins 2021 No. 23 s 49