Powers of Attorney Act 1998 Form

Powers of Attorney Act 1998

Queensland

Current as at 1 July 2014

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

Chapter 1 Preliminary

1 Short title

This Act may be cited as the .

2 Commencement

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

3 Dictionary

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

4 Act 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.

5 General 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.

6 Scope 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.

Chapter 2 Powers of attorney other than enduring powers of attorney

Part 1 Introduction

7 Application 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.

8 Powers of attorney

By a general power of attorney made under this Act, a person (principal) may 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 provide terms or information about exercising the power.

9 When attorney’s power exercisable

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

10 Powers of attorney given as security

A power of attorney given as security is a power of attorney that states it is irrevocable.

Part 2 Making a power of attorney other than an enduring power of attorney

11 Form of general power of attorney made under Act

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

12 Execution of powers of attorney

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

13 Appointment of 1 or more attorneys

The principal may appoint 1 attorney, or more than 1 attorney, being joint or several, or joint and several, attorneys.

14 Proof of power of attorney

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

Part 3 Revoking a power of attorney other than an enduring power of attorney

16 Advice of revocation

If a power of attorney is revoked, the principal must take reasonable steps to advise all attorneys affected by the revocation and deregister it if registered.

17 Written revocation

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.

18 Impaired capacity

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

19 Death

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

20 According to terms

A power of attorney is revoked according to its terms.

21 Resignation

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

22 Impaired 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.

23 Bankruptcy or insolvency

If an individual attorney becomes bankrupt or insolvent, the power of attorney is revoked to the extent it gives power to the attorney.

24 Death

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

Chapter 3 Enduring documents

Part 1 Application and interpretation

27 Application of ch 3

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

28 Meaning of enduring document

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

29 Meaning of eligible attorney

An eligible attorney, for a matter under an enduring power of attorney, means a person who is at least 18 years, not a paid carer or health provider, and otherwise qualified.

30 Meaning of eligible signer

An eligible signer is a person who is at least 18 years, not the witness, and not an attorney of the principal.

31 Meaning of eligible witness

An eligible witness is a justice, commissioner for declarations, notary public or lawyer, subject to the Act’s requirements.

Part 2 Enduring power of attorney provisions

32 Enduring powers of attorney

By an enduring power of attorney, an adult may authorise eligible attorneys to do anything in relation to 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.

33 When attorney’s power exercisable

A principal may specify when an enduring power of attorney becomes exercisable for financial matters.

34 Recognition of enduring power of attorney made in other States

An enduring power of attorney made in another State and complying with the other State’s requirements must be treated as if made under this Act, to the extent valid.

Part 3 Advance health directive provisions

35 Advance health directives

By an advance health directive, an adult principal may give directions about health matters and special health matters, give information, appoint eligible attorneys, and provide terms.

36 Operation of advance health directive

A direction in an advance health directive operates only while the principal has impaired capacity for the matter covered by the direction.

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

Nothing in this Act authorises, justifies or excuses killing a person.

37A Act’s relationship with Forensic Disability Act

The Forensic Disability Act 2011 prevails in case of inconsistency.

38 Act’s relationship with Mental Health Act

The Mental Health Act 2000 prevails in case of inconsistency.

39 Common 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.

Part 4 Making an enduring document

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

A principal may make an enduring power of attorney only if the principal understands the nature and effect of the enduring power of attorney.

42 Principal’s capacity to make an advance health directive

A principal may make an advance health directive only if the principal understands the relevant matters, and, where power to an attorney is given, the matters necessary to make an enduring power of attorney giving the same power.

43 Appointment of 1 or more eligible attorneys

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

44 Formal requirements

An enduring document must be signed, dated and witnessed in the approved manner.

45 Proof of enduring document

An enduring document may be proved by a certified copy.

Part 5 Revoking an enduring document

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

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.

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

A principal may revoke an advance health directive in writing only if the principal has capacity for the matter.

49 Formal requirements for written revocation of enduring document

A written revocation must be signed and witnessed in the approved manner.

50 Later enduring document

A later enduring document revokes an earlier one to the extent of inconsistency.

51 Death

When a principal dies, the enduring document is revoked.

52 Marriage

Unless otherwise stated, marriage revokes the document to the extent it gives power to someone other than the spouse.

52A Registered relationship

Unless otherwise stated, a registered relationship revokes the document to the extent it gives power to someone other than the registered partner.

53 Divorce

Divorce after making an enduring document revokes it to the extent it gives power to the divorced spouse.

Chapter 4 Statutory health attorneys

62 Statutory health attorney

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.

63 Who is the statutory health attorney

For a health matter, an adult’s statutory health attorney is the first readily available and culturally appropriate person in the listed order, or the public guardian if no-one is available.

Chapter 5 Exercising power for a principal

Part 1 Provisions applying to attorneys

65 Application of pt 1

Except where otherwise provided, this part applies to an attorney under a general power of attorney, an enduring document, or another power of attorney.

66 Act honestly and with reasonable diligence

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

67 Subject to terms of document

An attorney must exercise power subject to the terms of the document.

69 Execution of instrument etc.

An attorney may execute instruments in the attorney’s own name showing the capacity in which the attorney acts.

70 Subject to guardian or administrator

If a person is appointed as guardian or administrator for a principal, an attorney may exercise power only to the extent authorised by the tribunal.

71 Not exercise revoked power

An attorney must not exercise a power the attorney knows has been revoked.

72 Resignation of attorney

An attorney may resign by signed notice given to the principal.

73 Avoid conflict transaction

An attorney for a financial matter may enter into a conflict transaction only if authorised.

74 Protected use of confidential information

Confidential information may be disclosed or used only as permitted by the Act.

74A Prohibited use of confidential information

An attorney must not use confidential information other than as provided under section 74, unless the person has a reasonable excuse.

Part 2 Provisions applying to attorneys under enduring documents and statutory health attorneys

75 Application of pt 2

Except where otherwise provided, this part applies to an attorney under an enduring document and a statutory health attorney.

76 General principles for adults with impaired capacity

The principles set out in schedule 1 must be complied with by a person who performs a function or exercises a power under this Act.

77 Attorney 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 by the document.

78 Multiple attorneys are joint if not otherwise stated

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

79 Consult with principal’s other appointees or attorneys

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.

80 Act together with joint attorneys

Attorneys who may exercise power jointly must exercise the power unanimously unless otherwise provided.

81 Right of attorney to information

An attorney has a right to all information necessary to make informed decisions.

82 Resignation of attorney while principal has impaired capacity

While a principal has impaired capacity for a matter, an attorney may only resign with the court’s leave.

Part 3 Provisions about financial matters

83 Application

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

84 Power to invest

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

85 Keep records

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

86 Keep property separate

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

87 Presumption of undue influence

Transactions between a principal and an attorney or related person may give rise to a presumption of undue influence.

88 Gifts

An attorney for financial matters for an individual may give away the principal’s property only in limited circumstances.

89 Maintain principal’s dependants

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

Part 5 Protection and relief from liability

96 Interpretation

In this part, invalidity of a power under a document means invalidity because of non-compliance, lack of exercisability, or revocation.

97 Protection 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.

98 Protection for attorney if unaware of invalidity

An attorney who, without knowing a power is invalid, purports to exercise the power does not incur liability because of the invalidity.

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

A person who deals with an attorney and does not know the principal lacked capacity is entitled to rely on the witness certificate as evidence of capacity.

100 Additional protection if unaware of invalidity in health context

A person who, without knowing an advance health directive is invalid, acts in reliance on it does not incur liability because of the invalidity.

101 No less protection than if adult gave health consent

A person acting in accordance with a direction or decision is not liable to any greater extent than if the adult had consented and had capacity.

102 Protection 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 does not know the adult has one.

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

A health provider does not incur liability if the provider does not act in accordance with a direction in specified circumstances.

104 Protection for person carrying out forensic examination with consent

A person carrying out a forensic examination to which an attorney has consented is not liable to any greater extent than if the principal consented.

105 Relief from personal liability

The court may relieve an attorney from personal liability if the attorney acted honestly and reasonably and ought fairly to be excused.

Part 6 Compensation

106 Compensation for failure to comply

An attorney may be ordered by a court to compensate the principal for a loss caused by failure to comply with this Act in the exercise of a power.

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

A person whose benefit in a principal’s estate is lost because of a sale or other dealing by an attorney may apply for compensation out of the principal’s estate.

Chapter 6 Supreme Court

Part 1 General

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

The court’s powers under this Act extend to powers of attorney made otherwise than under this Act.

109 Inherent jurisdiction and litigation guardian process not affected

This Act does not affect the court’s inherent jurisdiction or rules of court about litigation guardians.

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

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

Part 2 Court’s powers

110 Application and participation

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

111 Determination of capacity

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

112 Effect 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.

113 Declaration about validity

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

114 Effect of invalidity

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

115 Declaration about commencement of power

The court may make a declaration that a power has begun or that the principal has impaired capacity.

116 Order removing attorney or changing or revoking document

The court may remove an attorney, appoint a new attorney, change terms, or revoke all or part of a document.

117 Changed circumstances as basis for change or revocation

The court may make the order if circumstances have changed to the extent that terms of the document are inappropriate.

118 Advice, directions and recommendations etc.

The court may give directions, advice or recommendations, including about interpretation or exercise of power.

120 Court may proceed without all relevant material

The court may proceed in urgent or special circumstances without all relevant material.

121 Report by public guardian or public trustee

The court may receive in evidence a written report by the public guardian or public trustee.

122 Records and audit

The court may order filing of accounts, detailed accounts, audit, or a management plan.

123 Court may dismiss frivolous etc. applications

The court may dismiss an application that is frivolous, trivial, vexatious, misconceived or lacking in substance.

124 Written reasons for decision

The court must give written reasons for its decision within 28 days after application by a person with sufficient interest.

125 Costs

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

Chapter 8 Other

161 Chief executive may approve forms

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

162 Regulation-making power

The Governor in Council may make regulations under this Act.

Chapter 9 Transitional provisions

163 Powers of attorney under Property Law Act 1974

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 made under this Act.

164 Subject to committee or manager

If a person, other than an attorney, is committee or manager of a principal, the attorney may exercise power only to the extent authorised by the committee or manager.

165 References to special life-sustaining measures

A reference in an enduring document to special life-sustaining measures is taken to be a reference to life-sustaining measures.

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

An enduring document that authorises an attorney to exercise power for health matters does not authorise power for withholding or withdrawal of a life-sustaining measure.

Schedule 1 Principles

General principles

An adult is presumed to have capacity for a matter.

An adult’s right to same human rights, individual value, valued role as member of society, participation in community life, self-reliance, and confidentiality must be recognised.

Health care principle

Power for a health matter should be exercised in the way least restrictive of the adult’s rights and only if necessary and appropriate or in the adult’s best interests.

Schedule 2 Types of matters

Financial matter

A financial matter relates to the principal’s financial or property matters, including paying expenses, receiving money, investing, dealing with land, and legal matters relating to property.

Personal matter

A personal matter relates to the principal’s care or welfare, including where the principal lives, with whom the principal lives, work, education, day-to-day issues, and health care.

Special personal matter

Special personal matters include making or revoking a will, making or revoking powers of attorney, voting, marriage, registered relationships, and surrogacy.

Health matter

A health matter relates to health care other than special health care.

Health care

Health care includes diagnosis, maintenance or treatment carried out by or under the direction of a health provider.

Life-sustaining measure

A life-sustaining measure is health care intended to sustain or prolong life and includes cardiopulmonary resuscitation, assisted ventilation, and artificial nutrition and hydration.

Special health care

Special health care includes removal of tissue for donation, sterilisation, termination of pregnancy, special medical research, electroconvulsive therapy, psychosurgery, and prescribed special health care.

Legal matter

A legal matter includes use of legal services to obtain information, undertake a transaction, bring or defend proceedings, and settle claims.

Schedule 3 Dictionary

The dictionary includes definitions for administrator, advance health directive, approved form, attorney, capacity, conflict transaction, court, dependant, eligible attorney, eligible witness, enduring document, enduring power of attorney, financial matter, health matter, health provider, impaired capacity, interested person, legal matter, principal, public guardian, relation, residential service, service provider, special health matter, statutory health attorney, tribunal, and other terms.

Notes / additional information