{"id":"powers-attorney-act-2014","name":"Powers of Attorney Act 2014","slug":"powers-of-attorney-act-2014","collection":"act","jurisdiction":"vic","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":178582,"registerId":"vic-powers-attorney-act-2014-current","compilationNumber":null,"startDate":"2026-04-05","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"Part 1—Preliminary\n\n","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Purposes","content":"\t1 Purposes\n\nThe purposes of this Act are to—\n\n(a) consolidate and provide for certain aspects of the law relating to powers of attorney, including the following—\n\n(i) the principles to be applied by persons acting under enduring powers of attorney or under the provisions of this Act relating to enduring powers of attorney; and\n\n(ii) the powers and duties of attorneys under enduring powers of attorney; and\n\n(iii) the protection of persons whose affairs are being dealt with under enduring powers of attorney; and\n\n(b) to provide for the meaning of the capacity of persons to make decisions for matters to which enduring powers of attorney and supportive attorney appointments relate; and\n\n(c) to provide for the appointment of a supportive attorney as one who supports the person making the appointment to make and give effect to the person's own decisions; and\n\n(d) to repeal Parts XI and XIA of the **Instruments Act 1958** and Division 5A of Part 4 of the **Guardianship and Administration Act 1986**; and\n\n(e) to make related amendments to the **Instruments Act 1958**, the **Guardianship and Administration Act 1986** and other Acts; and\n\n(f) to provide for related matters.\n\n","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"\t2 Commencement\n\n(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.\n\n(2) If a provision of this Act does not come into operation before 1 September 2015, it comes into operation on that day.\n\n","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Definitions","content":"\t3 Definitions\n\n(1) In this Act—\n\n***accommodation provider***, for an individual, means a person who is, in a professional or administrative capacity, directly or indirectly responsible for or involved in the provision of accommodation to the individual;\n\nS. 3(1) def. of *administration order* amended by No. 13/2019 s. 221(Sch. 1 item 38.1).\n\n***administration order*** has the same meaning as in the **Guardianship and Administration Act 2019**;\n\n***attorney for financial matters***, for an enduring power of attorney, means an attorney who has power for financial matters under that enduring power of attorney;\n\n***attorney for personal matters***, for an enduring power of attorney, means an attorney who has power for personal matters under that enduring power of attorney;\n\n***care worker***, for an individual, means a person who performs services for the care of the individual and receives remuneration for those services from any source, but does not include—\n\n(a) a person who receives a carer payment or other benefit from the Commonwealth or a State or a Territory of the Commonwealth for providing home care for the individual; or\n\n(b) a person who is a health provider;\n\n***close friend***, for a person, means another person who has a close personal relationship with the first person and a personal interest in the first person's welfare;\n\n***domestic partner*** of a person means—\n\n(a) a person who is in a registered relationship with the person; or\n\n(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—\n\n(i) for fee or reward; or\n\n(ii) on behalf of another person or an organisation (including a government, a government agency, a body corporate or a charitable or benevolent organisation);\n\n***enduring power of attorney*** means a power of attorney to which section 22 applies;\n\n***financial matter***, in relation to a principal under an enduring power of attorney, or a supportive attorney appointment, means any matter relating to the principal's financial or property affairs, and includes any legal matter that relates to the financial or property affairs of the principal;\n\nThe following are examples of financial matters—\n\n(a) making money available to the principal for the principal's personal expenditure;\n\n(b) paying expenses for the principal and any dependants of the principal relating to the maintenance and accommodation of the principal and any dependants, including purchasing an interest in, or making a contribution to an establishment to accommodate the principal or any dependants of the principal or otherwise making payments in relation to such property;\n\n(c) paying any debts of the principal*,* including any fees and expenses to which an attorney is legally entitled;\n\n(d) receiving and recovering money payable to the principal;\n\n(e) carrying on any trade or business of the principal;\n\n(f) performing any contracts entered into by the principal;\n\n(g) discharging any mortgage over the principal's property;\n\n(h) paying rates, taxes and insurance premiums or other outgoings for the principal's property;\n\n(i) insuring the principal or the principal's property;\n\n(j) otherwise preserving or improving the principal's property;\n\n(k) making investments for the principal;\n\n(l) continuing investments of the principal, including taking up rights to issues of new shares, or options for new shares to which the principal becomes entitled by the principal's existing shareholding;\n\n(m) undertaking any real estate transaction for the principal;\n\n(n) dealing with land for the principal;\n\n(o) undertaking a beneficial transaction for the principal involving the use of the principal's property as security for an obligation, including taking out a loan on behalf of the principal or giving a guarantee on behalf of the principal;\n\n(p) withdrawing money from or depositing money into an account of the principal with a financial institution;\n\n***financial services licensee*** has the same meaning as in section 761A of the Corporations Act;\n\n***general non-enduring power of attorney*** means a non-enduring power of attorney that is made under section 7;\n\nS. 3(1) def. of *guardianship order* amended by No. 13/2019 s. 221(Sch. 1 item 38.1).\n\n***guardianship order*** has the same meaning as in the **Guardianship and Administration Act 2019**;\n\n***health provider*** means a person who provides health care in the practice of a profession or in the ordinary course of business;\n\n***legal matter***, in relation to a principal under an enduring power of attorney, or a supportive attorney appointment, means—\n\n(a) use of legal services for the principal's benefit; or\n\n(b) bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the principal, including settling a claim before or after a legal proceeding or hearing starts;\n\nThe following are examples of legal matters—\n\n(a) the use of legal services to obtain information about the principal's legal rights;\n\n(b) the use of legal services to make a transaction;\n\nS. 3(1) def. of *medical treatment* inserted by No. 69/2016 s. 150(a).\n\n***medical treatment*** has the same meaning as it has in the **Medical Treatment Planning and Decisions Act 2016**;\n\nS. 3(1) def. of *medical research procedure* inserted by No. 69/2016 s. 150(a).\n\n***medical research procedure*** has the same meaning as it has in the **Medical Treatment Planning and Decisions Act 2016**;\n\n***nearest relative*** means the relative first listed in the definition of relative who has attained the age of 18 years, the elder or eldest of two or more relatives described in any paragraph being preferred to any other so described, regardless of sex;\n\n***non-enduring power of attorney*** means a power of attorney that is not an enduring power of attorney;\n\n***offence involving dishonesty*** means an offence that involves dishonesty and that is punishable by at least 3 months' imprisonment, whether it is an offence in this State, the Commonwealth, another State or a Territory of the Commonwealth or a foreign state or country;\n\nS. 3(1) def. of *personal matter* amended by No. 69/2016 s. 150(b)–(d).\n\n***personal matter***, in relation to a principal under an enduring power of attorney, or a supportive attorney appointment, means any matter relating to the principal's personal or lifestyle affairs, and includes any legal matter that relates to the principal's personal or lifestyle affairs, but does not include any matter that relates to medical treatment or medical research procedures;\n\nThe following are examples of personal matters—\n\n(a) where and with whom the principal lives;\n\n(b) persons with whom the principal associates;\n\n(c) whether the principal works and, if so, the kind and place of work and employer;\n\n(d) whether the principal undertakes education or training, the kind of education or training and the place where it takes place;\n\n(e) daily living issues such as diet and dress.\n\nSee the **Medical Treatment Planning and Decisions Act 2016** for matters relating to medical treatment and medical research procedures.\n\n***principal*** means—\n\n(a) for a power of attorney, the person who makes the power of attorney;\n\n(b) for a supportive attorney appointment, the person who makes the supportive attorney appointment;\n\nS. 3(1) def. of *Public Advocate* substituted by No. 13/2019 s. 221(Sch. 1 item 38.2).\n\n***Public Advocate*** has the same meaning as in the **Guardianship and Administration Act 2019**;\n\n***purchaser*** means a purchaser for valuable consideration and includes a lessee, mortgagee or other person who acquires an estate or interest in property for valuable consideration;\n\n***relative*** means any of the following—\n\n(a) spouse or domestic partner;\n\n(b) child;\n\n(c) parent or step-parent;\n\n(d) sibling or step-sibling;\n\n(e) grandparent;\n\n(f) grandchild;\n\n(g) uncle or aunt;\n\n(h) nephew or niece;\n\nS. 3(1) def. of *remote witnessing procedure* inserted by No. 11/2021 s. 89.\n\n***remote witnessing procedure*** means the procedure set out in section 5A;\n\nS. 3(1) def. of *special witness* inserted by No. 11/2021 s. 89.\n\n***special witness*** means—\n\n(a) an Australian legal practitioner; or\n\n(b) a justice of the peace appointed under section 7 of the **Honorary Justices Act 2014**; or\n\n(c) a person who is a member of a prescribed class of person;\n\n***spouse*** of a person means a person to whom the person is married;\n\n***supportive attorney*** means a person appointed under a supportive attorney appointment;\n\n***supportive attorney appointment*** means an appointment under section 85;\n\n***supportive attorney for financial matters***, for a supportive attorney appointment, means a supportive attorney who has power for financial matters under the supportive attorney appointment;\n\n***trustee company*** has the same meaning as in section 4 of the **Trustee Companies Act 1984**;\n\n***valuable consideration*** does not include a nominal consideration in money.\n\n(2) For the purposes of the definition of ***domestic partner*** in subsection (1)—\n\n(a) ***registered relationship***  has the same meaning as in the **Relationships Act 2008**; and\n\n(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of the relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the **Relationships Act 2008** as may be relevant in a particular case; and\n\n(c) a person is not a domestic partner of another person merely because they are co-tenants.\n\n(3) A reference in the definition of ***relative*** in subsection (1) to a person's sibling includes a reference to an individual who was adopted by one or both of the person's parents.\n\n(4) In this Act, a reference to signing at the direction of the principal, in relation to the signing of—\n\n(a) an enduring power of attorney, is a reference to signing the instrument in the presence of and at the direction of the principal under section 33(a)(ii); or\n\n(b) a revocation of an enduring power of attorney, is a reference to signing the instrument in the presence of and at the direction of the principal under section 46(a)(ii); or\n\n(c) a supportive attorney appointment, is a reference to signing the form in the presence of and at the direction of the principal under section 95(a)(ii); or\n\n(d) a revocation of a supportive attorney appointment, is a reference to signing the form in the presence of and at the direction of the principal under section 105(a)(ii).\n\n","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"Meaning of decision making capacity","content":"\t4 Meaning of decision making capacity\n\n(1) For the purpose of this Act, other than Part 2, a person has capacity to make a decision as to a matter (***decision making capacity***) if the person is able to—\n\n(a) understand the information relevant to the decision and the effect of the decision; and\n\n(b) retain that information to the extent necessary to make the decision; and\n\n(c) use or weigh that information as part of the process of making the decision; and\n\n(d) communicate the decision  and the person's views and needs as to the decision in some way, including by speech, gestures or other means.\n\n(2) For the purpose of subsection (1), a person is presumed to have decision making capacity unless there is evidence to the contrary.\n\n(3) For the purpose of subsection (1)(a), a person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.\n\n(4) In determining whether or not a person has decision making capacity regard should be had to the following—\n\n(a) a person may have decision making capacity for some matters and not others;\n\n(b) if a person does not have decision making capacity for a matter, it may be temporary and not permanent;\n\n(c) it should not be assumed that a person does not have decision making capacity for a matter on the basis of the person's appearance;\n\n(d) it should not be assumed that a person does not have decision making capacity for a matter merely because the person makes a decision that is, in the opinion of others, unwise;\n\n(e) a person has decision making capacity for a matter if it is possible for the person to make a decision in the matter with practicable and appropriate support.\n\nThe following are examples of practicable and appropriate support—\n\n(a) using information or formats tailored to the particular needs of a person; or\n\n(b) communicating or assisting a person to communicate his or her decision; or\n\n(c) giving a person additional time and discussing the matter with the person; or\n\n(d) using technology that alleviates the effects of a person's disability.\n\n(5) Despite subsection (4)(d), the fact that a person has made or proposes to make a decision that has a high risk of being seriously injurious to the person's health or wellbeing may, in conjunction with other factors, be evidence that the person is unable to understand, use or weigh information relevant to the decision or the effect of the decision.\n\n","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"Assessing decision making capacity","content":"\t5 Assessing decision making capacity\n\nA person who is assessing whether a person has decision making capacity, must take reasonable steps to conduct the assessment at a time and in an environment in which the person's decision making capacity can be assessed most accurately.\n\nS. 5A inserted by No. 11/2021 s. 90.\n\n","sortOrder":5},{"sectionNumber":"5A","sectionType":"section","heading":"Remote witnessing procedure","content":"\t5A Remote witnessing procedure\n\n(1) A power of attorney or other document under this Act that is required to be executed with a witness may be executed in accordance with the remote witnessing procedure set out in this section.\n\n(2) One of the witnesses must be a special witness and, if more than one witness qualifies as a special witness, only one of the special witnesses is to be the special witness if the document being executed is—\n\n(a) an enduring power of attorney under section 33; or\n\n(b) an instrument of revocation under section 46; or\n\n(c) a supportive attorney appointment under section 95; or\n\n(d) a form of revocation under section 105.\n\n(3) All elements of the remote witnessing procedure must be carried out on the same day and within Victoria.\n\n(4) The principal must either—\n\n(a) sign the power of attorney or other document with any required witnesses clearly seeing that signature being made by audio visual link or a combination of physical presence and audio visual link; or\n\n(b) if permitted, direct another person (the ***substitute signatory***) to sign the power of attorney or other document with any required witnesses clearly seeing and hearing the direction of the principal to the substitute signatory and all witnesses and the principal clearly seeing the substitute signatory's signature being made on behalf of the principal by audio visual link or a combination of physical presence and audio visual link.\n\n(5) Subject to subsection (6), any witness who is physically present with the principal then signs the power of attorney or other document in accordance with the requirements for witnesses under this Act.\n\n(6) If a special witness is required, that witness must sign the document last regardless of whether the special witness is physically present.\n\n(7) In addition to any other requirements under this Act, the power of attorney or other document is then transmitted by electronic communication to any witness attending by audio visual link who must—\n\n(a) be reasonably satisfied that the document which the witness is to sign is the same document that the principal (or the substitute signatory on behalf of the principal) signed; and\n\n(b) certify on the power of attorney or other document a statement that the witness witnessed the power of attorney or other document by audio visual link in accordance with the remote witnessing procedure; and\n\n(c) sign and date the power of attorney or other document in the presence by audio visual link of the principal and other witnesses; and\n\n(d) if the witness is the special witness, in addition to complying with paragraphs (a) to (c), the special witness must check the power of attorney or other document for compliance with the remote witnessing procedure and certify on the power of attorney or other document—\n\n(i) that the power of attorney or other document was signed and witnessed in accordance with the remote witnessing procedure; and\n\n(ii) that the person making the certification is a special witness and what type of special witness the person is; and\n\n(iii) whether an audio visual recording was made of the signing or witnessing of the power of attorney or other document by the remote witnessing procedure.\n\n(8) For the purposes of subsections (4), (5) and (7), ***principal*** includes an attorney under section 37, an alternative attorney under section 38, a supportive attorney under section 99 and an alternative supportive attorney under section 100.\n\nS. 5B inserted by No. 11/2021 s. 90.\n\n","sortOrder":6},{"sectionNumber":"5B","sectionType":"section","heading":"Which document is the power of attorney or other document?","content":"\t5B Which document is the power of attorney or other document?\n\n(1) If a power of attorney or other document is executed in accordance with the remote witnessing procedure and requires a special witness, the document which has been certified by the special witness in accordance with section 5A(7) is the valid power of attorney or other document.\n\n(2) If a power of attorney or other document is executed in accordance with the remote witnessing procedure and does not require a special witness, the document which contains the principal's signature (or the signature of the substitute signatory on behalf of the principal) and all the witness signatures is the valid power of attorney or other document.\n\n(3) The place of execution of a power of attorney or other document executed or signed in accordance with the remote witnessing procedure is the place where the principal is located at the time the power of attorney or other document is executed or signed.\n\n(4) Counterpart documents do not constitute a valid power of attorney or other document.\n\nS. 5C inserted by No. 11/2021 s. 90.\n\n","sortOrder":7},{"sectionNumber":"5C","sectionType":"section","heading":"Recording of remote witnessing procedure","content":"\t5C Recording of remote witnessing procedure\n\n(1) An audio visual recording of the execution or signing of a power of attorney or other document by remote witnessing procedure may be made only if all of the parties to the procedure consent to a recording being made.\n\n(2) The making of a recording or the failure to make a recording referred to in subsection (1) does not affect the validity of the power of attorney or other document executed or signed by the remote witnessing procedure or the use of that procedure.\n\nS. 5D inserted by No. 11/2021 s. 90.\n\n","sortOrder":8},{"sectionNumber":"5D","sectionType":"section","heading":"Remote witnessing procedure does not limit other duties and obligations","content":"\t5D Remote witnessing procedure does not limit other duties and obligations\n\n(1) The use of the remote witnessing procedure applies in addition to any other duty or obligation under any Act (including any Commonwealth Act) or at common law applying to a person as a principal or witness to a power of attorney or other document.\n\n(2) The use of the remote witnessing procedure does not limit any requirement imposed by this Act by which a person must not write or do something without first being satisfied of certain matters.\n\nSections 36, 49 and 98 impose certain certification requirements.\n\nPart 2—Non-enduring Powers of Attorney\n\nDivision 1—Definitions\n\n\t6 Definitions\n\n***statutory owner*** has the same meaning as in the **Settled Land Act 1958**;\n\n***tenant for life*** has the same meaning as in the **Settled Land Act 1958**;\n\n***trustee*** includes a tenant for life and a statutory owner.\n\n","sortOrder":9},{"sectionNumber":"Div 2","sectionType":"division","heading":"Scope and making of general non-enduring powers of attorney","content":"Division 2—Scope and making of general non-enduring powers of attorney\n\n","sortOrder":10},{"sectionNumber":"7","sectionType":"section","heading":"General non-enduring power of attorney","content":"\t7 General non-enduring power of attorney\n\n(1) A general non-enduring power of attorney that is in or to the effect of the form in the Schedule has the effect of giving the attorney under the power authority to do anything on behalf of the principal that a principal can lawfully do by an attorney.\n\n(2) A general non-enduring power of attorney that is in or to the effect of the form in the Schedule does not have the effect—\n\n(a) of empowering the attorney to delegate a power under the power of attorney, unless so specified in the power of attorney; and\n\n(b) of delegating to the attorney the execution or exercise of any trust, power or discretion vested in the principal as trustee (whether alone or jointly with any other person or persons).\n\n","sortOrder":11},{"sectionNumber":"8","sectionType":"section","heading":"Appointment of more than one attorney","content":"\t8 Appointment of more than one attorney\n\n(1) A principal under a general non-enduring power of attorney may appoint more than one person as attorneys under the power.\n\n(2) If more than one attorney is appointed under the power—\n\n(a) the principal may appoint the attorneys to act jointly or jointly and severally; or\n\n(b) if the principal does not specify how the attorneys are appointed, the attorneys are taken to be appointed to act jointly.\n\n","sortOrder":12},{"sectionNumber":"9","sectionType":"section","heading":"Appointment of alternative attorneys","content":"\t9 Appointment of alternative attorneys\n\n(1) A principal under a general non-enduring power of attorney may appoint one or more persons as alternative attorneys under the power.\n\n(2) The principal may specify in the power of attorney the circumstances in which any alternative attorney may act under the power.\n\n","sortOrder":13},{"sectionNumber":"10","sectionType":"section","heading":"When attorney's power is exercisable","content":"\t10 When attorney's power is exercisable\n\n(1) A principal may specify in a general non-enduring power of attorney a time from which, a circumstance in which or an occasion on which the power under the power of attorney is exercisable.\n\n(2) If a specification is not made in a general non‑enduring power of attorney under subsection (1), the powers under the general non‑enduring power of attorney are exercisable once the power of attorney is made.\n\n","sortOrder":14},{"sectionNumber":"Div 3","sectionType":"division","heading":"Execution of non-enduring power of attorney and execution of other documents under non-enduring power of attorney","content":"Division 3—Execution of non-enduring power of attorney and execution of other documents under non-enduring power of attorney\n\n","sortOrder":15},{"sectionNumber":"11","sectionType":"section","heading":"How should a non-enduring power of attorney be executed?","content":"\t11 How should a non-enduring power of attorney be executed?\n\n(1) A non-enduring power of attorney may be executed—\n\n(a) by the principal signing the non-enduring power of attorney; or\n\n(b) by another person signing the non-enduring power of attorney, in the presence of and at the direction of the principal.\n\n(2) If a non-enduring power of attorney is executed by another person signing the non-enduring power of attorney in the presence of and at the direction of the principal—\n\n(a) 2 other persons must be present and witness the person signing the non-enduring power of attorney; and\n\n(b) the other persons must sign the non-enduring power of attorney.\n\nS. 11(3) inserted by No. 11/2021 s. 91.\n\n(3) For the purposes of this section, a non-enduring power of attorney may be executed by using the remote witnessing procedure and is a valid non-enduring power of attorney.\n\nS. 11(4) inserted by No. 11/2021 s. 91.\n\n(4) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 11(5) inserted by No. 11/2021 s. 91.\n\n(5) For the purposes of this section \"in the presence of\" includes being present by audio visual link in accordance with the remote witnessing procedure.\n\n","sortOrder":16},{"sectionNumber":"12","sectionType":"section","heading":"Power of an attorney to execute instruments","content":"\t12 Power of an attorney to execute instruments\n\n(1) An attorney acting under a non-enduring power of attorney may, if the attorney thinks fit—\n\n(a) execute any instrument with the attorney's own signature, and, where sealing is required or employed, with the attorney's own seal (whether or not the power of attorney was given by hand); and\n\n(b) do any other thing in the attorney's own name.\n\n(2) An instrument that is executed by an attorney must be executed in a way that shows that the attorney executes it as an attorney for the principal.\n\n(3) An instrument that is executed or a thing that is done, by the attorney under a power of attorney, in the way specified in this section, is as effective as if it had been done by the principal—\n\n(a) with the principal's signature; or\n\n(b) with the principal's signature and seal; or\n\n(c) in the principal's name.\n\n(4) An instrument to which section 74(3) or (4) of the **Property Law Act 1958** applies may be executed either as provided for in that section or in this section.\n\n","sortOrder":17},{"sectionNumber":"Div 4","sectionType":"division","heading":"Protection from liability","content":"Division 4—Protection from liability\n\n","sortOrder":18},{"sectionNumber":"13","sectionType":"section","heading":"Interpretation","content":"\t13 Interpretation\n\nFor the purpose of this Division, knowledge that a non-enduring power of attorney is invalid or has been revoked includes the following—\n\n(a) knowledge of the happening of an event that invalidates or revokes the non-enduring power of attorney or a power under the non‑enduring power of attorney;\n\n(b) having reason to believe that the non‑enduring power of attorney, or a power under the non-enduring power of attorney, is invalid or has been revoked.\n\n","sortOrder":19},{"sectionNumber":"14","sectionType":"section","heading":"Protection for an attorney who does not know of revocation or invalidity","content":"\t14 Protection for an attorney who does not know of revocation or invalidity\n\nAn attorney under a non-enduring power of attorney, who acts in good faith, does not incur any liability, as against the principal or anyone else, merely because the attorney, purports to exercise power under the power of attorney and does not know that the power being exercised, or the power of attorney, is invalid or has been revoked.\n\n","sortOrder":20},{"sectionNumber":"15","sectionType":"section","heading":"Protection for a third person who does not know of revocation or invalidity when dealing with attorney","content":"\t15 Protection for a third person who does not know of revocation or invalidity when dealing with attorney\n\nIf a person—\n\n(a) acts in reliance on a non-enduring power of attorney; and\n\n(b) acts in good faith and without knowing the power of attorney is invalid or has been revoked—\n\nthat person (and any person claiming under that person) is entitled to rely on the power, despite the invalidity or revocation, as against the principal and any other person.\n\n","sortOrder":21},{"sectionNumber":"Div 5","sectionType":"division","heading":"Proof of non-enduring","content":"Division 5—Proof of non-enduring  \npower of attorney\n\n","sortOrder":22},{"sectionNumber":"16","sectionType":"section","heading":"Proof of non-enduring power of attorney","content":"\t16 Proof of non-enduring power of attorney\n\n(1) A non-enduring power of attorney may be proved by a copy of the instrument creating the power that is certified as provided for in this section.\n\n(2) Each page, other than the last page, of the copy must be certified to the effect that the copy of that page is a true and complete copy of the corresponding page of the original instrument.\n\n(3) The last page of the copy must be certified to the effect that the copy of the instrument is a true and complete copy of the original instrument.\n\n(4) Certification must be by one of the following persons—\n\n(a) an Australian legal practitioner;\n\n(b) a financial services licensee;\n\n(c) a justice of the peace;\n\n(d) a public notary;\n\nS. 16(4)(e) amended by No. 6/2018 s. 68(Sch. 2 item 97.1).\n\n(e) any other person authorised by law to administer an oath or affirmation;\n\n(f) a person of a prescribed class.\n\n(5) If a copy of an instrument creating a non-enduring power of attorney has been certified as provided for in this section, the non-enduring power of attorney may also be proved by a copy of the certified copy of the instrument, if the later copy is also certified as provided for in this section.\n\n(6) In this section—\n\nS. 16(6) def. of *justice of the peace* amended by No. 29/2015 s. 73.\n\n***justice of the peace*** means a person appointed as a justice of the peace under the **Honorary Justices Act 2014**;\n\n***public notary*** has the same meaning as in the **Public Notaries Act 2001**.\n\n","sortOrder":23},{"sectionNumber":"Div 6","sectionType":"division","heading":"Powers of attorney for security","content":"Division 6—Powers of attorney for security\n\n","sortOrder":24},{"sectionNumber":"17","sectionType":"section","heading":"Definition","content":"\t17 Definition\n\nIn this Division—\n\n***power of attorney for security*** means a non-enduring power of attorney—\n\n(a) that states that it is irrevocable; and\n\n(b) that is given by the principal to secure—\n\n(i) a proprietary interest of the attorney; or\n\n(ii) the performance of an obligation owed to the attorney.\n\n","sortOrder":25},{"sectionNumber":"18","sectionType":"section","heading":"Operation of powers of attorney for security","content":"\t18 Operation of powers of attorney for security\n\n(1) A power of attorney for security that is given to secure a proprietary interest may be given to the person entitled to the proprietary interest and to any person deriving title to that proprietary interest under that person.\n\n(2) A person who is given a power of attorney for security as a person deriving title to a proprietary interest under another person is an attorney under the power for all purposes of the power.\n\n(3) Subsections (1) and (2) do not affect any right to appoint a substitute attorney given by the power of attorney.\n\n","sortOrder":26},{"sectionNumber":"19","sectionType":"section","heading":"Revocation of powers of attorney for security","content":"\t19 Revocation of powers of attorney for security\n\nAs long as—\n\n(a) the attorney under a power of attorney for security has the proprietary interest that is secured by the power; or\n\n(b) the obligation owed to an attorney under a power of attorney for security is undischarged—\n\nthe following paragraphs apply to the power of attorney for security—\n\n(c) it is not capable of being revoked by the principal, without the consent of the attorney;\n\n(d) it is not revoked—\n\n(i) by the death of the principal; or\n\n(ii) by the principal not having capacity; or\n\n(iii) by the principal becoming insolvent under administration; or\n\n(iv) if the principal is a body corporate, by the winding up or dissolution of the principal.\n\n","sortOrder":27},{"sectionNumber":"20","sectionType":"section","heading":"Protection for a person who does not know of revocation of a power of attorney for security","content":"\t20 Protection for a person who does not know of revocation of a power of attorney for security\n\n(1) A person who acts in reliance on the purported exercise of a power by an attorney under a power of attorney for security—\n\n(a) is entitled to assume that the power of attorney for security cannot be revoked unless the principal does so with the consent of the attorney; and\n\n(b) must not be treated as knowing that the power of attorney for security has been revoked unless the person knows that the power has been revoked by the principal doing so with the consent of the attorney.\n\n(2) Subsection (1) does not apply if the person knows that the power of attorney was not in fact given to secure a proprietary interest or the performance of an obligation.\n\nPart 3—Enduring powers of attorney—scope, making and related issues\n\nDivision 1—Principles\n\n\t21 Principles to be applied by persons acting under this Act or an enduring power of attorney\n\n(1) If a person is exercising a power, carrying out a function or performing a duty under this Act for a principal under an enduring power of attorney who does not have decision making capacity in relation to one or more matters, the person—\n\n(a) must do so in a way that is as least restrictive of the principal's ability to decide and act as is possible in the circumstances; and\n\n(b) in doing so must ensure that, the principal is given practicable and appropriate support to enable the principal to participate in decisions affecting the principal as much as possible in the circumstances.\n\n(2) If an attorney under an enduring power of attorney is making a decision about a matter on behalf of a principal who does not have decision making capacity in relation to that matter, the attorney must—\n\n(a) give all practicable and appropriate effect to the principal's wishes; and\n\n(b) take any steps that are reasonably available to encourage the principal to participate in decision making, even though the principal does not have decision making capacity; and\n\n(c) act in a way that promotes the personal and social wellbeing of the principal, including by—\n\n(i) recognising the inherent dignity of the principal; and\n\n(ii) having regard to the principal's existing supportive relationships, religion, values and cultural and linguistic environment; and\n\n(iii) respecting the confidentiality of confidential information relating to the principal.\n\nDivision 2—Scope of power\n\n","sortOrder":28},{"sectionNumber":"22","sectionType":"section","heading":"Enduring power of attorney","content":"\t22 Enduring power of attorney\n\n(1) By an enduring power of attorney a person may authorise an eligible attorney to do anything on behalf of the person that a person can lawfully do by an attorney.\n\nS. 22(2) substituted by No. 64/2016 s. 4.\n\n(2) Without limiting subsection (1), a person may confine what is authorised to be done by an attorney—\n\n(a) to personal matters only; or\n\n(b) to financial matters only; or\n\n(c) to matters specified in the instrument of appointment.\n\n(3) Despite any rule of law to the contrary an enduring power of attorney is not revoked by the principal, after making the power, becoming a person who does not have decision making capacity for any matters to which the power of attorney applies.\n\n(4) In this section—\n\n***eligible attorney*** means a person who is eligible under Division 3 to be appointed as an attorney under the power of attorney.\n\nSee section 26 for matters for which power cannot be given under an enduring power of attorney.\n\n","sortOrder":29},{"sectionNumber":"23","sectionType":"section","heading":"Who may make an enduring power of attorney?","content":"\t23 Who may make an enduring power of attorney?\n\n(1) A person may not make an enduring power of attorney unless—\n\n(a) the person is of or over 18 years of age; and\n\n(b) the person has decision making capacity in relation to making the enduring power of attorney.\n\n(2) For the purpose of section 4(1)(a), understanding the effect of the decision to make an enduring power of attorney includes understanding the following matters—\n\n(a) that the principal may, in the power of attorney, place conditions on the power given to the attorney and give instructions to the attorney about the exercise of the power given to the attorney;\n\n(b) when the power of attorney commences;\n\n(c) that once the power of attorney is exercisable in relation to a matter, the attorney has the same powers the principal has, when the principal has decision making capacity for that matter, to do anything for which the power for that matter is given;\n\n(d) that the principal may revoke the power of attorney at any time when the principal has decision making capacity in relation to making the power of attorney;\n\n(e) that the power of attorney continues even if the principal subsequently becomes a person who does not have decision making capacity for a matter in the power of attorney;\n\n(f) that at any time when the principal does not have decision making capacity in relation to revoking the power of attorney, the principal is unable to effectively oversee the use of the power.\n\n","sortOrder":30},{"sectionNumber":"24","sectionType":"section","heading":"Conditions and instructions in an enduring power of attorney","content":"\t24 Conditions and instructions in an enduring power of attorney\n\nA person making an enduring power of attorney may place conditions on the exercise of the power or give instructions about the exercise of the power.\n\n","sortOrder":31},{"sectionNumber":"25","sectionType":"section","heading":"Attorney not able to delegate power","content":"\t25 Attorney not able to delegate power\n\nAn enduring power of attorney does not have the effect of empowering the attorney to delegate a power under the enduring power of attorney.\n\n","sortOrder":32},{"sectionNumber":"26","sectionType":"section","heading":"Matters for which power cannot be given under an enduring power of attorney","content":"\t26 Matters for which power cannot be given under an enduring power of attorney\n\nTo avoid doubt, despite section 22, a principal under an enduring power of attorney is not able to authorise an attorney under that power to—\n\n(a) make or revoke a will for the principal; or\n\n(b) make or revoke an enduring power of attorney for the principal; or\n\n(c) vote on the principal's behalf in an election for the State or the Commonwealth or another State or a Territory of the Commonwealth or a local election or a referendum; or\n\n(d) consent to the entering into or dissolution of a marriage of the principal or of a sexual relationship of the principal; or\n\n(e) make or give effect to a decision—\n\n(i) about the care and wellbeing of any child of the principal; or\n\n(ii) about the adoption of a child under 18 years of age of the principal; or\n\n(f) to enter into, or agree to enter into, a surrogacy arrangement, within the meaning of the **Assisted Reproductive Treatment Act 2008**, on the principal's behalf; or\n\n(g) consent to the making or discharge of a substitute parentage order, within the meaning of the **Status of Children Act 1974**, on the principal's behalf; or\n\n(h) manage the estate of the principal on the death of the principal; or\n\n(i) consent to an unlawful act.\n\n","sortOrder":33},{"sectionNumber":"27","sectionType":"section","heading":"Power of an attorney to execute instruments","content":"\t27 Power of an attorney to execute instruments\n\nSection 12 applies to an attorney who acts under an enduring power of attorney in the same way that it applies to an attorney who acts under a non‑enduring power of attorney.\n\nDivision 3—Appointment of attorney\n\n","sortOrder":34},{"sectionNumber":"28","sectionType":"section","heading":"Who is eligible to be appointed as an attorney?","content":"\t28 Who is eligible to be appointed as an attorney?\n\n  (1) An individual is eligible to be appointed as an attorney under an enduring power of attorney if the individual is a person—\n\n(a) who is of or over 18 years of age; and\n\n(b) who is not an insolvent under administration; and\n\n(c) who, if the individual is to be an attorney for financial matters—\n\n(i) has not been convicted or found guilty of an offence involving dishonesty; or\n\n(ii) if the person has been convicted or found guilty of an offence involving dishonesty, has disclosed the conviction or finding of guilt to the principal and the disclosure of the conviction or finding of guilt has been recorded in the enduring power of attorney; and\n\n(d) who is not a care worker, a health provider or an accommodation provider for the principal.\n\n(2) A trustee company is eligible to be appointed as an attorney for financial matters under an enduring power of attorney if the company is not a company against which a proceeding for winding up has commenced.\n\n(3) The Public Advocate is eligible to be appointed as an attorney under an enduring power of attorney for personal matters.\n\n","sortOrder":35},{"sectionNumber":"29","sectionType":"section","heading":"Attorney may be occupant of position","content":"\t29 Attorney may be occupant of position\n\nAn attorney under an enduring power of attorney may be appointed as being the occupant of a position, however described, at the time the power of attorney is made or from time to time.\n\n","sortOrder":36},{"sectionNumber":"30","sectionType":"section","heading":"Appointment of more than one attorney","content":"\t30 Appointment of more than one attorney\n\n(1) A principal under an enduring power of attorney may appoint more than one person as attorneys under the power.\n\n(2) If more than one attorney is appointed under the power, the principal may specify the matters for which each attorney is to act.\n\n(3) If more than one attorney is appointed under the power, as to all or any of the matters under the power—\n\n(a) the principal may appoint any of the attorneys to act—\n\n(i) as joint attorneys; or\n\n(ii) as several attorneys; or\n\n(iii) as joint and several attorneys; or\n\n(iv) as majority attorneys; or\n\n(b) if the principal does not specify how the attorneys are appointed, the attorneys are taken to be appointed to act as joint attorneys.\n\n(4) Unless an enduring power of attorney otherwise provides, if attorneys under the enduring power of attorney are appointed—\n\n(a) to act jointly, the attorneys are authorised to act under the power unanimously, and, if a document is required to be signed, by all signing the document; or\n\n(b) to act severally, the attorneys are authorised to act under the power as one alone and, if a document is required to be signed, by signing the document as one alone; or\n\n(c) to act jointly and severally, the attorneys are authorised to act under the power—\n\n(i) by all agreeing and, if a document is required to be signed, by all signing the document; or\n\n(ii) as one alone or by more than one agreeing and, if a document is required to be signed, by the one alone signing the document or if more than one agree, by those who agree signing the document; or\n\n(d) to act by a majority, the attorneys are authorised to act under the power if a majority of the attorneys agree and, if a document is required to be signed, by the majority who agree signing the document.\n\n","sortOrder":37},{"sectionNumber":"31","sectionType":"section","heading":"Appointment of alternative attorneys","content":"\t31 Appointment of alternative attorneys\n\nS. 31(1) substituted by No. 64/2016 s. 5.\n\n(1) Subject to subsection (1A), a principal under an enduring power of attorney may appoint—\n\n(a) one or more persons as alternative attorneys for an attorney appointed under the power of attorney; or\n\n(b) a person as an alternative attorney in respect of more than one attorney appointed under the power of attorney.\n\nS. 31(1A) inserted by No. 64/2016 s. 5.\n\n(1A) A principal must not appoint a person under subsection (1) unless the person is eligible to be appointed as an attorney under section 28.\n\n(2) An alternative attorney is authorised to act under the enduring power of attorney—\n\n(a) in the circumstances specified in the power of attorney; or\n\n(b) if no circumstances are specified in the power of attorney—\n\n(i) if the attorney for whom the alternative attorney is appointed—\n\n(A) dies; or\n\n(B) does not have the decision making capacity for the matters to which the appointment applies; or\n\n(C) is otherwise not willing or able to act; or\n\n(ii) if the appointment of the attorney for whom the alternative attorney is appointed is revoked by the operation of section 54.\n\n(3) An alternative attorney must act under the enduring power of attorney in the same manner as the attorney for whom the alternative attorney is appointed to act, unless the enduring power of attorney otherwise provides.\n\nSee section 30(4) for the manner in which the attorney acts.\n\n(4) The provisions of this Act that relate to enduring powers of attorney apply to an alternative attorney appointed under an enduring power of attorney, when the alternative attorney is acting under the power of attorney, in the same way that they apply to any attorney appointed under the power of attorney.\n\nDivision 4—Making the power\n\n","sortOrder":38},{"sectionNumber":"32","sectionType":"section","heading":"Form of enduring power of attorney","content":"\t32 Form of enduring power of attorney\n\nAn enduring power of attorney must be in the prescribed form.\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\nS. 33 amended by No. 11/2021 s. 92 (ILA s. 39B(1)).\n\n","sortOrder":39},{"sectionNumber":"33","sectionType":"section","heading":"How should an enduring power of attorney be executed?","content":"\t33 How should an enduring power of attorney be executed?\n\n(1) An instrument creating an enduring power of attorney must be executed—\n\n(i) the principal signing the instrument; or\n\n(ii) a person, who is eligible to do so under section 34, signing the instrument in the presence of and at the direction of the principal; and\n\n(b) by 2 persons—\n\n(i) who are present and who witness the signing of the instrument; and\n\n(ii) who sign and date the instrument in the presence of the principal and in the presence of each other; and\n\n(iii) who certify in writing in the instrument in the manner required by section 36.\n\nS. 33(2) inserted by No. 11/2021 s. 92.\n\n(2) For the purposes of this section, an enduring power of attorney may be executed by using the remote witnessing procedure and is a valid enduring power of attorney.\n\nS. 33(3) inserted by No. 11/2021 s. 92.\n\n(3) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 33(4) inserted by No. 11/2021 s. 92.\n\n(4) For the purposes of this section \"in the presence of\" includes being present by audio visual link in accordance with the remote witnessing procedure.\n\n","sortOrder":40},{"sectionNumber":"34","sectionType":"section","heading":"Who is eligible to sign an enduring power of attorney at the direction of the principal?","content":"\t34 Who is eligible to sign an enduring power of attorney at the direction of the principal?\n\n(1) A person is eligible to sign an instrument creating an enduring power of attorney at the direction of the principal if the person—\n\n(b) is not a witness to the signing of the instrument; and\n\n(c) is not an attorney under the enduring power of attorney.\n\n(2) To avoid doubt a person is not excluded from being eligible to sign an instrument creating an enduring power of attorney at the direction of the principal merely because the person is an employee of an attorney for the principal who signs the instrument while the person is acting in the ordinary course of that employment.\n\n","sortOrder":41},{"sectionNumber":"35","sectionType":"section","heading":"Who can witness the signing of an instrument creating an enduring power of attorney?","content":"\t35 Who can witness the signing of an instrument creating an enduring power of attorney?\n\n(1) As to the 2 persons who, under section 33(b), witness the signing of an instrument creating an enduring power of attorney—\n\n(b) one person must be either authorised to witness affidavits or a medical practitioner.\n\n(2) A person is eligible to witness the signing of an instrument creating an enduring power of attorney if the person—\n\n(b) is not signing the instrument at the direction of the principal; and\n\n(c) is not an attorney under the power of attorney; and\n\n(d) is not—\n\n(ii) a relative of an attorney under the power of attorney; or\n\n(3) To avoid doubt a person is not excluded from being eligible to witness the signing of an instrument creating an enduring power of attorney merely because the person is an employee of an attorney for the principal who signs the instrument while the person is acting in the ordinary course of that employment.\n\n","sortOrder":42},{"sectionNumber":"36","sectionType":"section","heading":"Certification of witness to signing","content":"\t36 Certification of witness to signing\n\n(1) A witness who witnesses a principal signing an instrument creating an enduring power of attorney must—\n\n(i) that the principal appeared to freely and voluntarily sign the instrument in the presence of the witness; and\n\n(ii) that, at the time the principal signed the instrument, the principal appeared to the witness to have decision making capacity in relation to the making of the enduring power of attorney; and\n\n(i) an attorney under the power of attorney; or\n\n(ii) a relative of the principal or of an attorney under the power of attorney; or\n\n(iii) a care worker or an accommodation provider for the principal; and\n\n(c) if the witness is acting as a person who is authorised to witness affidavits or a medical practitioner, state the qualification on which the witness is acting.\n\n(2) A witness who witnesses another person signing an instrument creating an enduring power of attorney at the direction of the principal must—\n\n(a) certify in writing on the instrument—\n\n(i) that, in the presence of the witness, the principal appeared to freely and voluntarily direct the person to sign for the principal; and\n\n(ii) that the person signed the instrument in the presence of the principal and the witness; and\n\n(iii) that, at the time the person signed the instrument, the principal appeared to the witness to have decision making capacity in relation to making the enduring power of attorney; and\n\n(i) the person signing at the direction of the principal; or\n\n(ii) an attorney under the power of attorney; or\n\n(iii) a relative of the principal or of an attorney under the power of attorney; or\n\n(iv) a care worker or an accommodation provider for the principal; and\n\n(c) if the witness is acting as a person who is authorised to witness affidavits or as a medical practitioner, state the qualification on which the witness is acting.\n\nS. 36(4) inserted by No. 11/2021 s. 93.\n\n(4) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 36(5) inserted by No. 11/2021 s. 93.\n\n(5) For the purposes of this section \"in the presence of\" includes being present by audio visual link in accordance with the remote witnessing procedure.\n\nS. 37 amended by No. 11/2021 s. 94 (ILA s. 39B(1)).\n\n","sortOrder":43},{"sectionNumber":"37","sectionType":"section","heading":"Acceptance by attorney","content":"\t37 Acceptance by attorney\n\n(1) An enduring power of attorney is effective as to an attorney appointed under the power of attorney if—\n\n(a) in the instrument creating the power of attorney the attorney signs a statement of acceptance of appointment that is in the prescribed form; and\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\n(b) in the case of an attorney who is not a trustee company, a person of or over 18 years of age witnesses the signing of the statement of acceptance under paragraph (a), and signs that he or she has witnessed the signing; and\n\n(c) in the statement of acceptance, the attorney states that the attorney—\n\n(i) is eligible under this Part of this Act to act as an attorney under an enduring power of attorney; and\n\n(ii) understands the obligations of an attorney under an enduring power of attorney under this Act and the consequences of failing to comply with those obligations; and\n\n(iii) undertakes to act in accordance with the provisions of this Act that relate to enduring powers of attorney.\n\nS. 37(2) inserted by No. 11/2021 s. 94.\n\n(2) For the purposes of subsection (1)(b), an enduring power of attorney accepted by an attorney who is not a trustee company is effective if the statement of acceptance is signed using the remote witnessing procedure.\n\nS. 37(3) inserted by No. 11/2021 s. 94.\n\n(3) For the purposes of subsection (1)(b), a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 38 amended by No. 11/2021 s. 95 (ILA s. 39B(1)).\n\n","sortOrder":44},{"sectionNumber":"38","sectionType":"section","heading":"Acceptance by alternative attorney","content":"\t38 Acceptance by alternative attorney\n\n(1) An enduring power of attorney is effective as to an alternative attorney appointed under the power of attorney if—\n\n(a) in the instrument creating the power of attorney, the alternative attorney signs a statement of acceptance of appointment that is in the prescribed form; and\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\n(b) in the case of an alternative attorney who is not a trustee company, a person of or over 18 years of age witnesses the signing of the statement of acceptance under paragraph (a), and signs that he or she has witnessed the signing; and\n\n(c) in the statement of acceptance, the alternative attorney states that the alternative attorney—\n\n(i) is eligible under this Part of this Act to act as an attorney under an enduring power of attorney; and\n\n(ii) understands the obligations of an attorney under an enduring power of attorney under this Act and the consequences of failing to comply with those obligations; and\n\n(iii) undertakes to act in accordance with the provisions of this Act that relate to enduring powers of attorney; and\n\n(iv) understands the circumstances in which the alternative attorney is authorised to act under this Act; and\n\n(v) is prepared to act in the place of the attorney for whom the alternative attorney is appointed, if still eligible to act as attorney, when authorised to do so under this Act.\n\nSee section 31 for the circumstances in which an alternative attorney is authorised to act in the place of the attorney for whom the alternative attorney is appointed.\n\nS. 38(2) inserted by No. 11/2021 s. 95.\n\n(2) For the purposes of subsection (1)(b), an enduring power of attorney accepted by an alternative attorney who is not a trustee company is effective if the statement of acceptance is signed using the remote witnessing procedure.\n\nS. 38(3) inserted by No. 11/2021 s. 95.\n\n(3) For the purposes of subsection (1)(b), a signature may be an electronic signature if the remote witnessing procedure is used.\n\n","sortOrder":45},{"sectionNumber":"Part 4","sectionType":"part","heading":"Enduring powers of attorney—Commencement","content":"Part 4—Enduring powers of attorney—Commencement\n\n","sortOrder":46},{"sectionNumber":"39","sectionType":"section","heading":"When attorney's power is exercisable","content":"\t39 When attorney's power is exercisable\n\n(1) A principal may specify, in an enduring power of attorney, a time from which, a circumstance in which or an occasion on which the power for all matters or the power for a specified matter under the power of attorney is exercisable, which may be—\n\n(a) immediately on the making of the power; or\n\n(b) when the principal ceases to have decision making capacity for the matters or matter; or\n\n(c) any other time, circumstance or occasion.\n\n(2) If a specification is not made in an enduring power of attorney under subsection (1), the power for all matters under the enduring power of attorney is exercisable on and from the making of the power of attorney.\n\n(3) Despite a specification being made under subsection (1) in an enduring power of attorney, if before the specified time, circumstance or occasion for a matter, the principal does not have decision making capacity for the matter, an attorney who has power for the matter may exercise that power during any period when the principal does not have that capacity.\n\n(4) If an attorney is acting under an enduring power of attorney as to a matter because the principal does not have decision making capacity for the matter, a person dealing with the attorney may ask for evidence to establish that the principal does not have the decision making capacity.\n\nAn example of evidence that may be given under subsection (4) is a medical certificate as to the principal's decision making capacity.\n\n","sortOrder":47},{"sectionNumber":"40","sectionType":"section","heading":"Attorney to notify if acting because the principal does not have decision making capacity","content":"\t40 Attorney to notify if acting because the principal does not have decision making capacity\n\n(1) Before an attorney under an enduring power of attorney for the first time commences to exercise power for a matter because the principal does not have decision making capacity for that matter, the attorney must take reasonable steps to give notice that the attorney is commencing to exercise the power to any person who, the enduring power of attorney states, should be so notified.\n\n(2) A failure by the attorney to give a notification under this section does not affect any exercise by the attorney of power under the enduring power of attorney.\n\n(3) For the purpose of subsection (1), reasonable steps may include sending the notification by post to—\n\n(a) for an individual, the last known residential address of the individual; or\n\n(b) for a body corporate, the last known business address of the body corporate.\n\n","sortOrder":48},{"sectionNumber":"41","sectionType":"section","heading":"Regaining decision making capacity does not prevent exercise of power by attorney","content":"\t41 Regaining decision making capacity does not prevent exercise of power by attorney\n\n(1) If an attorney under an enduring power of attorney has commenced exercising power for any matter under that enduring power of attorney because the principal does not have decision making capacity for the matter, the attorney may continue to exercise that power even if the principal regains decision making capacity for the matter.\n\n(2) Nothing in subsection (1) is to be taken to enable a person to exercise power under an enduring power of attorney that is invalid or has been revoked.\n\n","sortOrder":49},{"sectionNumber":"42","sectionType":"section","heading":"Principal may continue to exercise power","content":"\t42 Principal may continue to exercise power\n\nTo avoid doubt, the giving of an enduring power of attorney does not affect the principal's power to do anything that the principal is otherwise legally capable of doing.\n\nPart 5—Enduring powers of attorney—Ending\n\nDivision 1—Provision in enduring power of attorney as to revocation\n\n\t43 Terms of enduring power of attorney as to revocation\n\n(1) An enduring power of attorney is revoked according to its terms.\n\n(2) The provisions in Divisions 2 and 3 as to revocation of an enduring power of attorney are subject to subsection (1).\n\nDivision 2—Revocation by principal\n\n","sortOrder":50},{"sectionNumber":"44","sectionType":"section","heading":"Revocation by principal","content":"\t44 Revocation by principal\n\nThe principal under an enduring power of attorney may revoke the enduring power of attorney or the appointment of an attorney or alternative attorney under the enduring power of attorney if the principal has decision making capacity in relation to making an enduring power of attorney giving the same power.\n\n","sortOrder":51},{"sectionNumber":"45","sectionType":"section","heading":"Form of revocation","content":"\t45 Form of revocation\n\nA revocation under section 44 must be by instrument (***instrument of revocation***) in the prescribed form.\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\nS. 46 amended by No. 11/2021 s. 96 (ILA s. 39B(1)).\n\n","sortOrder":52},{"sectionNumber":"46","sectionType":"section","heading":"How should an instrument of revocation be executed?","content":"\t46 How should an instrument of revocation be executed?\n\n(1) An instrument of revocation must be executed—\n\n(i) the principal signing the instrument; or\n\n(ii) a person, who is eligible to do so under section 47, signing the instrument in the presence of and at the direction of the principal; and\n\n(b) by 2 persons who—\n\n(i) are present and who witness the principal or person signing the instrument; and\n\n(ii) sign and date the instrument in the presence of the principal and in the presence of each other; and\n\n(iii) certify in writing in the instrument in the manner required by section 49.\n\nS. 46(2) inserted by No. 11/2021 s. 96.\n\n(2) For the purposes of this section, an instrument of revocation may be executed by using the remote witnessing procedure and is a valid instrument of revocation.\n\nS. 46(3) inserted by No. 11/2021 s. 96.\n\n(3) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 46(4) inserted by No. 11/2021 s. 96.\n\n(4) For the purposes of this section \"in the presence of\" includes being present by audio visual link in accordance with the remote witnessing procedure.\n\n","sortOrder":53},{"sectionNumber":"47","sectionType":"section","heading":"Who is eligible to sign the instrument of revocation at the direction of the principal?","content":"\t47 Who is eligible to sign the instrument of revocation at the direction of the principal?\n\n(1) A person is eligible to sign the instrument of revocation at the direction of the principal if the person—\n\n(b) is not a witness to the signing of the instrument of revocation; and\n\n(c) is not an attorney under the enduring power of attorney.\n\n(2) To avoid doubt a person is not excluded from being eligible to sign an instrument of revocation at the direction of the principal merely because the person is an employee of an attorney for the principal who signs the instrument while the person is acting in the ordinary course of that employment.\n\n","sortOrder":54},{"sectionNumber":"48","sectionType":"section","heading":"Who can witness the signing of the instrument of revocation?","content":"\t48 Who can witness the signing of the instrument of revocation?\n\n(1) As to the 2 persons who, under section 46(b), witness the signing of the instrument of revocation—\n\n(b) one person must be either authorised to witness affidavits or a medical practitioner.\n\n(2) A person is eligible to witness the signing of the instrument if the person—\n\n(b) is not signing the instrument at the direction of the principal; and\n\n(c) is not an attorney under the power of attorney; and\n\n(d) is not—\n\n(ii) a relative of an attorney under the power of attorney; or\n\n(3) To avoid doubt a person is not excluded from being eligible to witness the signing of the instrument of revocation merely because the person is an employee of an attorney for the principal who signs the instrument while the person is acting in the ordinary course of that employment.\n\n","sortOrder":55},{"sectionNumber":"49","sectionType":"section","heading":"Certification of witness to signing of instrument of revocation","content":"\t49 Certification of witness to signing of instrument of revocation\n\n(1) A witness who, under section 46(b)(i) witnesses a principal signing an instrument of revocation must—\n\n(i) that the principal appeared to freely and voluntarily sign the instrument in the presence of the witness; and\n\n(ii) that, at the time the principal signed the instrument, the principal appeared to the witness to have decision making capacity to revoke the enduring power of attorney; and\n\n(i) an attorney under the power of attorney; or\n\n(ii) a relative of the principal or an attorney under the power of attorney; or\n\n(iii) a care worker or an accommodation provider for the principal; and\n\n(c) if the witness is acting as a person who is authorised to witness affidavits or a medical practitioner, state the qualification on which the witness is acting.\n\n(2) A witness who, under section 46(b)(i) witnesses another person signing an instrument of revocation at the direction of the principal must—\n\n(i) that, in the presence of the witness, the principal appeared to freely and voluntarily direct the person to sign for the principal; and\n\n(ii) that the person signed the instrument in the presence of the principal and the witness; and\n\n(iii) that, at the time the person signed the instrument, the principal appeared to the witness to have decision making capacity to revoke the enduring power of attorney; and\n\n(i) the person signing at the direction of the principal; or\n\n(ii) an attorney under the power of attorney; or\n\n(iii) a relative of the principal or of an attorney under the power of attorney; or\n\n(iv) a care worker or an accommodation provider for the principal; and\n\n(c) if the witness is acting as a person who is authorised to witness affidavits or as a medical practitioner, state the qualification on which the witness is acting.\n\nS. 49(4) inserted by No. 11/2021 s. 97.\n\n(4) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 49(5) inserted by No. 11/2021 s. 97.\n\n(5) For the purposes of this section \"in the presence of\" includes being present by audio visual link in accordance with the remote witnessing procedure.\n\n","sortOrder":56},{"sectionNumber":"50","sectionType":"section","heading":"Notification of revocation","content":"\t50 Notification of revocation\n\n(1) On revoking an enduring power of attorney under this Division, the principal must take reasonable steps to inform any attorneys under the power that it has been revoked.\n\n(2) On revoking the appointment of an attorney or alternative attorney under this Division, the principal must take reasonable steps to inform that attorney or alternative attorney and all other attorneys and alternative attorneys under the power that the appointment has been revoked.\n\n(3) A failure by the principal to give a notification under this section does not affect the validity of the revocation.\n\n(4) For the purpose of subsections (1) and (2), reasonable steps may include sending the notification by post to—\n\n(a) for an individual, the last known residential address of the individual; or\n\n(b) for a body corporate, the last known business address of the body corporate.\n\nDivision 3—Other revocation\n\n","sortOrder":57},{"sectionNumber":"51","sectionType":"section","heading":"Death of principal","content":"\t51 Death of principal\n\nAn enduring power of attorney is revoked on the death of the principal.\n\n","sortOrder":58},{"sectionNumber":"52","sectionType":"section","heading":"Death of attorney","content":"\t52 Death of attorney\n\nWhen an attorney under an enduring power of attorney dies, the enduring power of attorney is revoked so far as it gives power to that attorney.\n\n","sortOrder":59},{"sectionNumber":"53","sectionType":"section","heading":"Attorney does not have decision making capacity","content":"\t53 Attorney does not have decision making capacity\n\nIf an attorney under an enduring power of attorney becomes a person who does not have decision making capacity for the matters to which the enduring power of attorney applies, the power of attorney is revoked so far as it gives power to that attorney.\n\n","sortOrder":60},{"sectionNumber":"54","sectionType":"section","heading":"Revocation of appointment and notification of revocation, winding up etc.","content":"\t54 Revocation of appointment and notification of revocation, winding up etc.\n\n(1) An enduring power of attorney is revoked so far as it gives power to an attorney who is an individual, if, after appointment—\n\n(a) the attorney becomes an insolvent under administration; or\n\n(b) the attorney becomes a care worker, a health provider or an accommodation provider for the principal; or\n\n(c) for an attorney for financial matters, the attorney is convicted or found guilty of an offence involving dishonesty.\n\n(2) An enduring power of attorney is revoked so far as it gives power to an attorney that is a trustee company, if, after appointment of the trustee company the company is wound up or ceases to be registered.\n\n(3) An attorney must take reasonable steps to give notice in accordance with subsection (4)—\n\n(a) if the appointment of the attorney is revoked by the operation of subsection (1) or (2); or\n\n(b) in the case of an attorney that is a trustee company, if—\n\n(i) a proceeding against the company for winding up commences; or\n\n(ii) the company is convicted or found guilty of an offence involving dishonesty.\n\n(4) Notice of an event referred to in subsection (3)(a) or (b) must be given to—\n\n(a) the principal, if the principal has decision making capacity for the matter for which the attorney has power; and\n\n(b) any other attorney; and\n\n(c) any alternative attorney; and\n\n(d) if the principal does not have decision making capacity for the matter for which the attorney has power and there is no person to notify under paragraph (b) or (c)—\n\n(i) the nearest relative of the principal; or\n\n(ii) if the attorney is not able to notify the nearest relative, the Public Advocate.\n\n(5) A notification under subsection (3) must be in the prescribed form.\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\n(6) A failure by the attorney to give a notification under this section does not affect the validity of the revocation of the power.\n\nVCAT also has power to revoke a power of attorney, see Part 8.\n\nS. 55 (Heading) amended by No. 64/2016 s. 6(1).\n\n","sortOrder":61},{"sectionNumber":"55","sectionType":"section","heading":"Revocation by later enduring power of attorney","content":"\t55 Revocation by later enduring power of attorney\n\nS. 55(1) amended by No. 64/2016 s. 6(2).\n\n(1) An enduring power of attorney is revoked by a later enduring power of attorney of the principal.\n\n(2) Subsection (1) does not apply if the principal specifies otherwise in the later enduring power of attorney.\n\nDivision 4—Resignation of attorney or alternative attorney when principal has decision making capacity\n\n","sortOrder":62},{"sectionNumber":"56","sectionType":"section","heading":"Resignation when principal has decision making capacity","content":"\t56 Resignation when principal has decision making capacity\n\n(1) An attorney or alternative attorney under an enduring power of attorney, who has power for a matter, may resign as attorney or alternative attorney for that matter at any time when the principal has decision making capacity for the matter.\n\nS. 56(2) amended by No. 64/2016 s. 7.\n\n(2) On the resignation of the attorney or alternative attorney, the enduring power of attorney is revoked so far as it gives power to the attorney or alternative attorney for that matter.\n\n","sortOrder":63},{"sectionNumber":"57","sectionType":"section","heading":"Form of resignation","content":"\t57 Form of resignation\n\nThe resignation of an attorney or alternative attorney under this Division must be in the prescribed form.\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\n","sortOrder":64},{"sectionNumber":"58","sectionType":"section","heading":"Notification of resignation","content":"\t58 Notification of resignation\n\n(1) A person who resigns as attorney for a matter under this Division must take reasonable steps to inform the following persons of the resignation—\n\n(b) any other attorney and any alternative attorney under the enduring power of attorney.\n\n(2) A person who resigns as alternative attorney for a matter under this Division must take reasonable steps to inform the following persons of the resignation—\n\n(b) any attorney under the enduring power of attorney.\n\n(3) A failure by the attorney or alternative attorney to give a notification under this section does not affect the validity of the resignation of the attorney.\n\nDivision 5—Resignation of attorney or alternative attorney when principal does not have decision making capacity\n\n","sortOrder":65},{"sectionNumber":"59","sectionType":"section","heading":"Resignation when principal does not have decision making capacity","content":"\t59 Resignation when principal does not have decision making capacity\n\n(1) An attorney under an enduring power of attorney, who has power for a matter, may resign as attorney for that matter at any time when the principal does not have decision making capacity for the matter—\n\n(a) if there is another attorney who has power for the matter; or\n\n(b) if there is no other attorney who has power for the matter but there is an alternative attorney who has power for the matter who is able and willing to act; or\n\n(c) if paragraph (a) or (b) does not apply, with leave from VCAT or the Supreme Court.\n\n(2) An alternative attorney under an enduring power of attorney, who has power for a matter and who is acting under that power, may resign as alternative attorney for that matter at any time when the principal does not have decision making capacity for the matter with leave from VCAT or the Supreme Court.\n\n(3) An alternative attorney under an enduring power of attorney, who has power for a matter and who is not acting as attorney under the enduring power of attorney may resign as alternative attorney for that matter when the principal does not have decision making capacity for the matter.\n\n","sortOrder":66},{"sectionNumber":"60","sectionType":"section","heading":"Form of resignation","content":"\t60 Form of resignation\n\nIf section 59(1)(a) or (b) or (3) applies to the resignation of an attorney under an enduring power of attorney, the resignation must be in the prescribed form.\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\n","sortOrder":67},{"sectionNumber":"61","sectionType":"section","heading":"Notification of resignation","content":"\t61 Notification of resignation\n\n(1) If section 59(1)(a) applies to the resignation of an attorney, the attorney must take reasonable steps to notify the following persons of the resignation—\n\n(a) the other attorney who has power for the matter and any other attorney under the enduring power of attorney;\n\n(b) any alternative attorney.\n\n(2) If section 59(1)(b) applies to the resignation of an attorney, the attorney must take reasonable steps to notify the alternative attorney and any other alternative attorney under the enduring power of attorney.\n\n(3) If section 59(3) applies to the resignation of an alternative attorney, the alternative attorney must take reasonable steps to notify the following persons of the resignation—\n\n(a) any attorney under the enduring power of attorney;\n\n(b) any other alternative attorney.\n\n(4) A failure by an attorney or alternative attorney to give a notification under this section does not affect the validity of the resignation of the attorney or alternative attorney.\n\nDivision 6—Effect of attorney's power ending where more than one attorney\n\n","sortOrder":68},{"sectionNumber":"62","sectionType":"section","heading":"Ending of attorney's power where more than one attorney","content":"\t62 Ending of attorney's power where more than one attorney\n\n(1) The ending of any power of a joint attorney under an enduring power of attorney does not affect the ability to exercise that power of any remaining joint attorney or attorneys who have that power.\n\n(2) The ending of any power of a joint and several attorney under an enduring power of attorney does not affect the ability to exercise that power of any remaining joint and several attorney or attorneys who have that power.\n\n(3) The ending of any power of a several or majority attorney under an enduring power of attorney does not affect the ability to exercise that power of any remaining several or majority attorney or attorneys who have that power.\n\nS. 62(3A) inserted by No. 64/2016 s. 8(1).\n\n(3A) Despite subsection (3), if the ending of any power of a majority attorney under an enduring power of attorney results in the remaining majority attorneys being no longer able to exercise that power as majority attorneys, then the remaining attorneys must exercise that power jointly.\n\nS. 62(4) amended by No. 64/2016 s. 8(2).\n\n(4) Subsection (1), (2), (3) or (3A) does not apply if the principal specifies otherwise in the enduring power of attorney.\n\nPart 6—Enduring powers of attorney—Operation\n\nDivision 1—Duties of attorney\n\n\t63 Duties of attorney\n\n(1) An attorney under an enduring power of attorney—\n\n(a) must act honestly, diligently and in good faith; and\n\n(b) must exercise reasonable skill and care; and\n\n(c) must not use the position for profit, unless permitted under section 70; and\n\nS. 63(1)(d) amended by No. 64/2016 s. 9.\n\n(d) must avoid acting where there is or may be a conflict of interest unless the attorney is authorised by the power, the principal or VCAT; and\n\n(e) must not disclose confidential information gained as the attorney under the power unless authorised by the power or by law; and\n\n(f) must keep accurate records and accounts as required by section 66.\n\n  (2) Nothing in this section is to be taken to affect any duty an attorney has at common law.\n\n","sortOrder":69},{"sectionNumber":"64","sectionType":"section","heading":"Conflict transactions","content":"\t64 Conflict transactions\n\n(1) An attorney for financial matters under an enduring power of attorney has a duty not to enter into a transaction in that capacity if the transaction is one in which there is or may be a conflict between—\n\n(a) the duty of the attorney to the principal; and\n\n(b) the interests of the attorney, or a relative, business associate or close friend of the attorney.\n\n(2) Subsection (1) does not apply—\n\n(a) to a gift made in accordance with section 67; or\n\n(b) to a transaction providing for the maintenance of a dependant of the principal made in accordance with section 68; or\n\n(c) to a transaction merely because in the transaction the attorney in the attorney's own right and on behalf of the principal—\n\n(i) deals with an interest in property held jointly by the attorney and the principal (whether as joint tenants or tenants in common); or\n\n(ii) obtains a loan or gives a guarantee or indemnity in respect of a transaction referred to in subparagraph (i); or\n\n(iii) acquires an interest in property to be held jointly by the attorney and the principal (whether as joint tenants or tenants in common), when the principal has decision making capacity for the matter; or\n\n(iv) obtains a loan or gives a guarantee or indemnity in respect of a transaction referred to in subparagraph (iii), when the principal has decision making capacity for the matter.\n\n","sortOrder":70},{"sectionNumber":"65","sectionType":"section","heading":"Permitted conflict transactions","content":"\t65 Permitted conflict transactions\n\n(1) Despite section 64, an attorney for financial matters under an enduring power of attorney may enter into a conflict transaction if the principal, before the time of the transaction, authorises the attorney to enter into—\n\n(a) the transaction; or\n\n(b) the kind of transaction; or\n\n(c) conflict transactions generally.\n\n(2) Despite section 64, an attorney for financial matters under an enduring power of attorney may continue a conflict transaction that the attorney has entered into and that is not completed, if—\n\n(a) the principal validates the entering into of the transaction; and\n\n(b) at the time of validation the principal has decision making capacity for the transaction.\n\n(3) Despite section 64, the principal under an enduring power of attorney may validate a conflict transaction an attorney for financial matters under an enduring power of attorney has entered into that has been completed if, at the time the principal gives the validation, the principal has decision making capacity for the transaction.\n\n(4) Despite section 64, an attorney for financial matters under an enduring power of attorney may enter into a conflict transaction if VCAT, before the time of the transaction, authorises the attorney to enter into—\n\n(a) the transaction; or\n\n(b) the kind of transaction; or\n\n(c) conflict transactions generally.\n\n(5) Despite section 64, VCAT may validate a conflict transaction that an attorney for financial matters under an enduring power of attorney has entered into that has been completed.\n\n(6) A transaction that is validated by the principal under subsection (2) or (3) or VCAT under subsection (5) is taken to be valid from its commencement.\n\n(7) In this section—\n\n***conflict transaction*** means a transaction that an attorney must not enter into under section 64.\n\n","sortOrder":71},{"sectionNumber":"66","sectionType":"section","heading":"Keeping records","content":"\t66 Keeping records\n\nAn attorney under an enduring power of attorney must keep accurate records and accounts of—\n\n(a) all dealings and transactions made for financial matters; and\n\n(b) all material dealings and transactions made for personal matters.\n\n","sortOrder":72},{"sectionNumber":"67","sectionType":"section","heading":"Gifts","content":"\t67 Gifts\n\n(1) Subject to any condition or restriction stated in an enduring power of attorney, an attorney for financial matters under the power of attorney may make a gift of the principal's property only if—\n\n(a) the gift is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances; and\n\n(b) the gift is—\n\n(i) to a relative or a close friend of the principal and is of a seasonal nature or for a special event; or\n\nAn example of a special event is a birth or a marriage.\n\n(ii) a type of donation that the principal made when the principal had decision making capacity for the matter or that the principal might reasonably be expected to make.\n\n(2) A gift may be made under subsection (1) even though the gift is made to—\n\n(a) the attorney; or\n\n(b) a relative or close friend of the attorney; or\n\n(c) an organisation with whom the attorney has a connection.\n\n(3) An attorney must keep a written record of any gift by the attorney—\n\n(a) that is made to—\n\n(i) the attorney; or\n\n(ii) a relative or close friend of the attorney; or\n\n(iii) an organisation with which the attorney has a connection; and\n\n(b) the total value of which is of or over—\n\n(i) the prescribed amount; or\n\n(ii) if an amount has not been prescribed, $100.\n\n(4) A record kept under subsection (3) must set out the amount of the gift and the person or organisation to whom it has been made.\n\n","sortOrder":73},{"sectionNumber":"68","sectionType":"section","heading":"Maintenance of principal's dependants","content":"\t68 Maintenance of principal's dependants\n\n(1) Subject to subsection (2), an attorney for financial matters under an enduring power of attorney may provide from the principal's property for the needs of a dependant of the principal, if the enduring power of attorney so provides.\n\n(2) Unless the enduring power of attorney otherwise provides, a provision under subsection (1) must not be more than what is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances.\n\n","sortOrder":74},{"sectionNumber":"69","sectionType":"section","heading":"Separation of attorney's and principal's property","content":"\t69 Separation of attorney's and principal's property\n\n(1) An attorney for financial matters under an enduring power of attorney must keep the attorney's property separate from the principal's property.\n\n(2) Subsection (1) does not apply to—\n\n(a) property owned jointly by the principal and attorney; or\n\n(b) property acquired jointly by the principal and attorney in place of property owned jointly by the principal and attorney.\n\n(3) Subsection (1) does not affect any other obligation imposed by law.\n\n","sortOrder":75},{"sectionNumber":"70","sectionType":"section","heading":"Remuneration of attorney","content":"\t70 Remuneration of attorney\n\nAn attorney under an enduring power of attorney is not entitled to any remuneration unless it is specifically authorised by the enduring power of attorney or by law.\n\nDivision 2—Decision making between more than one attorney\n\n","sortOrder":76},{"sectionNumber":"71","sectionType":"section","heading":"Disagreement between attorneys","content":"\t71 Disagreement between attorneys\n\nWhere attorneys are authorised to act severally under an enduring power of attorney and there is a disagreement between an attorney for personal matters and an attorney for financial matters regarding a matter where each has authority to act—\n\n(a) either attorney may apply to VCAT for an order as to how the matter should be resolved; and\n\n(b) unless the enduring power of attorney otherwise provides or unless otherwise ordered by VCAT, the decision of the attorney for personal matters prevails to the extent of any inconsistency.\n\n","sortOrder":77},{"sectionNumber":"72","sectionType":"section","heading":"Attorney for financial matters to implement decision","content":"\t72 Attorney for financial matters to implement decision\n\nS. 72(1) amended by No. 21/2015 s. 3(Sch. 1 item 40).\n\n(1) An attorney for financial matters under an enduring power of attorney must implement a decision of an attorney for personal matters under that power of attorney.\n\n(2) Despite subsection (1), if the implementation of the decision of the attorney for personal matters would result in a serious depletion of the principal's financial resources, the attorney for financial matters must apply to VCAT under Part 8 for an order on the matter.\n\nDivision 3—Protection and relief from liability\n\n","sortOrder":78},{"sectionNumber":"73","sectionType":"section","heading":"Interpretation","content":"\t73 Interpretation\n\nFor the purpose of this Division, knowledge that an enduring power of attorney or a power under an enduring power of attorney is invalid or has been revoked includes the following—\n\n(a) knowledge of the happening of an event that invalidates or revokes the power of attorney or the power under the enduring power of attorney;\n\n(b) having reason to believe that the power of attorney, or the power under the enduring power of attorney, is invalid or has been revoked.\n\n","sortOrder":79},{"sectionNumber":"74","sectionType":"section","heading":"Relief from personal liability","content":"\t74 Relief from personal liability\n\nIf the Supreme Court or VCAT considers that—\n\n(a) an attorney under an enduring power of attorney is or may be personally liable for a contravention of the provisions of this Act relating to enduring powers of attorney; and\n\n(b) the attorney has acted honestly and reasonably and ought fairly to be excused for the contravention—\n\nthe Supreme Court or VCAT may relieve the attorney from all or part of the attorney's personal liability for the contravention.\n\n","sortOrder":80},{"sectionNumber":"75","sectionType":"section","heading":"Protection for attorney, third person who does not know of invalidity or revocation or breach of condition","content":"\t75 Protection for attorney, third person who does not know of invalidity or revocation or breach of condition\n\n(1) An attorney—\n\n(a) who purports to exercise a power under an enduring power of attorney; and\n\n(b) who does so in good faith and without knowing that the power being exercised or the enduring power of attorney is invalid or has been revoked—\n\nis entitled to rely on the power of attorney as against the principal and any other person, despite the invalidity or revocation.\n\n(2) If a person—\n\n(a) acts in reliance on the purported exercise of a power by an attorney under an enduring power of attorney; and\n\n(b) acts in good faith without knowing that the power is invalid or has been revoked—\n\nthat person (and any person claiming under that person) is entitled to rely on the purported exercise of the power as against the principal and any other person, despite the invalidity or revocation.\n\n","sortOrder":81},{"sectionNumber":"76","sectionType":"section","heading":"Protection if acting on advice, direction or order of Court or VCAT","content":"\t76 Protection if acting on advice, direction or order of Court or VCAT\n\nAn attorney under an enduring power of attorney who acts in compliance with any advice, direction or order of the Supreme Court or VCAT is taken to have complied with this Act unless the attorney knowingly gave the Court or VCAT false or misleading information relevant to the advice, direction or order.\n\nDivision 4—Compensation\n\n","sortOrder":82},{"sectionNumber":"77","sectionType":"section","heading":"Compensation for acts of attorney","content":"\t77 Compensation for acts of attorney\n\n(1) The Supreme Court or VCAT may order an attorney under an enduring power of attorney to compensate the principal for a loss caused by the attorney contravening any provision of this Act relating to enduring powers of attorney when acting as attorney under the power of attorney.\n\n(2) Subsection (1) applies—\n\n(a) even if the attorney is convicted of an offence in relation to the attorney's contravention; and\n\n(b) even if the principal has died, in which case compensation is payable to the estate of the principal; and\n\n(c) even if the enduring power of attorney is invalid or has been revoked or, at the time of the contravention, was invalid or had been revoked.\n\n(3) This section does not apply if Division 3 applies.\n\n","sortOrder":83},{"sectionNumber":"78","sectionType":"section","heading":"Who can apply for an order for compensation?","content":"\t78 Who can apply for an order for compensation?\n\nA person may apply for an order under section 77 if the person is—\n\n(a) the principal; or\n\n(b) any attorney under the enduring power of attorney; or\n\n(c) an executor or administrator of the principal's estate; or\n\n(d) the Public Advocate; or\n\n(e) the nearest relative of the principal; or\n\n(f) any other person whom VCAT is satisfied has a special interest in the affairs of the principal.\n\n","sortOrder":84},{"sectionNumber":"79","sectionType":"section","heading":"Time limit for application for order for compensation","content":"\t79 Time limit for application for order for compensation\n\n(1) An application for an order for compensation under this Division must be made—\n\n(a) if the principal has died, within 6 months after that death; or\n\n(b) if the attorney has died, within 6 months after that death; or\n\n(c) if both the principal and the attorney have died, within 6 months after the first death.\n\n(2) The Supreme Court or VCAT may extend the time specified under subsection (1).\n\n","sortOrder":85},{"sectionNumber":"80","sectionType":"section","heading":"VCAT may refer matter to Supreme Court","content":"\t80 VCAT may refer matter to Supreme Court\n\nVCAT may refer to the Supreme Court an application made to it for an order for compensation under this Division.\n\nDivision 5—General matters\n\n","sortOrder":86},{"sectionNumber":"81","sectionType":"section","heading":"Enduring power of attorney is a deed","content":"\t81 Enduring power of attorney is a deed\n\nAn enduring power of attorney that is made in compliance with Part 3 has effect as a deed, even if it is not expressed to be a deed or to be executed under seal.\n\n","sortOrder":87},{"sectionNumber":"82","sectionType":"section","heading":"Proof of enduring power of attorney","content":"\t82 Proof of enduring power of attorney\n\nAn enduring power of attorney may be proved in the same manner as a non-enduring power of attorney is proved under section 16.\n\n","sortOrder":88},{"sectionNumber":"83","sectionType":"section","heading":"Effect of administration order or guardianship order on enduring power of attorney","content":"\t83 Effect of administration order or guardianship order on enduring power of attorney\n\n(1) If VCAT makes an administration order for a principal, an attorney under an enduring power of attorney for that principal must not exercise a power for financial matters for that principal unless the attorney is authorised by VCAT to do so and then only so far as is authorised.\n\n(2) If VCAT makes a guardianship order for a principal, an attorney under an enduring power of attorney for that principal must not exercise powers in relation to personal matters for that principal unless the attorney is authorised by VCAT to do so and then only so far as is authorised.\n\nS. 83A inserted by No. 41/2017 s. 24.\n\n","sortOrder":89},{"sectionNumber":"83A","sectionType":"section","heading":"Interest of principal in property not to be altered by sale or other disposition of property","content":"\t83A Interest of principal in property not to be altered by sale or other disposition of property\n\n(1) A principal and a beneficiary of a principal have the same interest in any money or other property arising from or received in respect of any sale, mortgage, exchange, partition or other disposition under the powers given to an attorney under an enduring power of attorney which have not been applied under those powers that the principal or beneficiary would have had in the property the subject of the sale, mortgage, exchange, partition or disposition if no sale, mortgage, exchange, partition or disposition had been made.\n\n(2) For the purposes of this section, money arising from the compulsory acquisition or purchase under any Act of property of a principal is taken to be money arising from the sale of that property under the powers given to the attorney under the enduring power of attorney.\n\n(3) An attorney under an enduring power of attorney is not required to keep the proceeds of the sale or other disposition of property under this section separate from the principal's other assets.\n\n(4) Money received by an attorney under an enduring power of attorney under this section may be invested in any manner in which trust funds may be invested under the **Trustee Act 1958**.\n\n(5) In this section, ***beneficiary of a principal*** means—\n\n(a) a beneficiary of a principal under a will; or\n\n(b) a principal's executor; or\n\n(c) a principal's administrator under the **Administration and Probate Act 1958**.\n\nS. 83B inserted by No. 41/2017 s. 24.\n\n","sortOrder":90},{"sectionNumber":"83B","sectionType":"section","heading":"Exception to ademption applies regardless of testamentary capacity","content":"\t83B Exception to ademption applies regardless of testamentary capacity\n\nSection 83A applies whether or not the principal has testamentary capacity.\n\nPart 7—Supportive attorney appointments\n\nDivision 1—Definitions\n\n\t84 Definitions\n\n***appointment form***, in relation to a supportive attorney appointment, means the document creating the supportive attorney appointment;\n\n***supported decision*** means a decision about a matter that, under a supportive attorney appointment, the supportive attorney is authorised to support the principal in making.\n\nDivision 2—Power to make appointment and nature of appointment\n\n","sortOrder":91},{"sectionNumber":"85","sectionType":"section","heading":"Power to make and scope of appointment","content":"\t85 Power to make and scope of appointment\n\nS. 85(1) amended by No. 69/2016 s. 151.\n\n(1) A person may appoint an eligible person to support the person in making and giving effect to decisions by exercising any of the powers set out in sections 87, 88 and 89 that are specified in the appointment in relation to any personal matters, financial matters or other matters (excluding matters concerning medical treatment and medical research procedures) specified in the appointment.\n\n(2) To avoid doubt, nothing in this Act or in an appointment under subsection (1) should be taken as providing for the making of a supported decision that is not a decision of the principal.\n\n(3) To avoid doubt, under an appointment under subsection (1) a person is not able to authorise another person—\n\n(a) to support the person making the appointment in conducting any illegal activity; or\n\n(b) to coerce, intimidate or in any way unduly influence the person making the appointment into a particular course of action.\n\n(4) In this section—\n\n***eligible person*** means a person who is eligible to be appointed as a supportive attorney under section 91.\n\n","sortOrder":92},{"sectionNumber":"86","sectionType":"section","heading":"Who may make a supportive attorney appointment?","content":"\t86 Who may make a supportive attorney appointment?\n\n(1) A person may not make a supportive attorney appointment unless—\n\n(a) the person is of or over 18 years of age; and\n\n(b) the person has decision making capacity in relation to making the supportive attorney appointment.\n\n(2) For the purpose of section 4(1)(a), understanding the effect of the decision to make a supportive attorney appointment includes understanding the following matters—\n\n(a) that the appointment enables the principal to make and give effect to his or her own decisions with support; and\n\n(b) that the appointment allows the principal to choose a person to support the principal to make and give effect to his or her own decisions; and\n\n(c) that supported decisions are decisions of the principal and not the supportive attorney; and\n\n(d) when the appointment commences; and\n\n(e) that the principal may revoke the appointment at any time when the principal has decision making capacity in relation to making the supportive attorney appointment.\n\n","sortOrder":93},{"sectionNumber":"87","sectionType":"section","heading":"Information power","content":"\t87 Information power\n\n(1) By a supportive attorney appointment, the principal may authorise the supportive attorney to access, collect or obtain from or assist the principal in accessing, collecting or obtaining from any person any personal information about the principal—\n\n(a) that is relevant to a supported decision; and\n\n(b) that may lawfully be collected or obtained by the principal.\n\n(2) For the purposes of subsection (1), a person referred to in subsection (1) is authorised to disclose personal information about the principal to a supportive attorney who is acting under the supportive attorney appointment.\n\nNote to s. 87(2) amended by No. 64/2016 s. 10.\n\nSee also the **Disability Act 2006**, the **Health Records Act 2001**, the **Privacy and Data Protection Act 2014** for provisions as to disclosure of personal information to supportive attorneys and access to personal information by supportive attorneys.\n\n(3) A supportive attorney may disclose any information given to the supportive attorney under subsection (1) for the purpose of—\n\n(a) anything that is relevant and necessary to the supportive attorney carrying out the role of supportive attorney; or\n\n(b) any legal proceeding under this Act, or any report of a legal proceeding under this Act; or\n\n(c) any other lawful reason.\n\n","sortOrder":94},{"sectionNumber":"88","sectionType":"section","heading":"Communication power","content":"\t88 Communication power\n\nBy a supportive attorney appointment, the principal may authorise the supportive attorney—\n\n(a) to communicate any information about the principal that is relevant or necessary to the making of or giving effect to a supported decision; or\n\n(b) to communicate or to assist the principal to communicate a supported decision of the principal.\n\n","sortOrder":95},{"sectionNumber":"89","sectionType":"section","heading":"Powers as to giving effect to decisions","content":"\t89 Powers as to giving effect to decisions\n\n(1) By a supportive attorney appointment, the principal may authorise the supportive attorney to take any reasonable action or to do anything that is reasonably necessary to give effect to a supported decision, other than a decision about a significant financial transaction.\n\n(2) In this section—\n\n***significant financial transaction*** includes—\n\n(a) making an investment for the principal or continuing an investment 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; or\n\n(b) undertaking any real estate transaction for the principal, excluding entering into a residential tenancy for a premises in which the principal lives or intends to live; or\n\n(c) dealing with land on behalf of the principal including taking out a loan on behalf of the principal or giving a guarantee on behalf of the principal; or\n\n(d) undertaking a transaction for the principal involving the use of the principal's property as security for an obligation; or\n\n(e) buying and selling substantial personal property on behalf of the principal.\n\n(3) For the purpose of the definition of ***significant financial transaction*** in subsection (2), paragraph (a) does not include investing or continuing an investment of an amount of $10 000 or less in total in one or more interest bearing accounts of an authorised deposit-taking institution, within the meaning of the Banking Act 1959 of the Commonwealth.\n\n","sortOrder":96},{"sectionNumber":"90","sectionType":"section","heading":"Duties and obligations of supportive attorney","content":"\t90 Duties and obligations of supportive attorney\n\n(1) A supportive attorney under a supportive attorney appointment—\n\n(a) must act honestly, diligently, and in good faith; and\n\n(b) must exercise reasonable skill and care; and\n\n(c) must not use the position for profit; and\n\n(d) must avoid acting where there is or may be a conflict of interest and, if acting where there is a conflict of interest, must ensure that the interests of the principal are the primary consideration; and\n\n(e) must discuss anything about a supported decision with the principal in a way the principal can understand and that will assist the principal to make the decision.\n\n(2) A supportive attorney under a supportive attorney appointment is not entitled to receive any remuneration for acting as supportive attorney.\n\nDivision 3—Appointment of supportive attorneys\n\n","sortOrder":97},{"sectionNumber":"91","sectionType":"section","heading":"Who is eligible to be appointed as a supportive attorney?","content":"\t91 Who is eligible to be appointed as a supportive attorney?\n\nA person is eligible to be appointed as a supportive attorney if the person is an individual—\n\n(a) who is of or over 18 years of age; and\n\n(b) who is not an insolvent under administration; and\n\n(c) who, if the individual is to be a supportive attorney for financial matters—\n\n(i) has not been convicted or found guilty of an offence involving dishonesty; or\n\n(ii) if the person has been convicted or found guilty of an offence involving dishonesty, has disclosed the conviction or finding of guilt to the principal and the disclosure of the conviction or finding of guilt has been recorded in the supportive attorney appointment; and\n\n(d) who is not a care worker, a health provider or an accommodation provider for the principal.\n\n","sortOrder":98},{"sectionNumber":"92","sectionType":"section","heading":"Appointment of more than one supportive attorney","content":"\t92 Appointment of more than one supportive attorney\n\n(1) A principal under a supportive attorney appointment may appoint more than one person as supportive attorneys under the appointment to act separately.\n\n(2) If more than one supportive attorney is appointed under the appointment, the principal may specify the matters for which each supportive attorney is to act.\n\n","sortOrder":99},{"sectionNumber":"93","sectionType":"section","heading":"Appointment of alternative supportive attorneys","content":"\t93 Appointment of alternative supportive attorneys\n\nS. 93(1) substituted by No. 64/2016 s. 11.\n\n(1) Subject to subsection (1A), a principal under a supportive attorney appointment may appoint—\n\n(a) one or more persons as alternative supportive attorneys for a supportive attorney appointed under the appointment; or\n\n(b) a person as an alternative supportive attorney in respect of more than one supportive attorney appointed under the appointment.\n\nS. 93(1A) inserted by No. 64/2016 s. 11.\n\n(1A) A principal must not appoint a person under subsection (1) unless the person is eligible to be appointed as a supportive attorney under section 91.\n\n(2) An alternative supportive attorney is authorised to act under the supportive attorney appointment—\n\n(a) in the circumstances specified in the appointment; or\n\n(b) if no circumstances are specified in the appointment—\n\n(i) if the supportive attorney for whom the alternative supportive attorney is appointed—\n\n(A) dies; or\n\n(B) does not have the decision making capacity for the matters to which the appointment applies; or\n\n(C) is otherwise not willing or able to act; or\n\n(ii) if the appointment of the supportive attorney for whom the alternative supportive attorney is appointed is revoked by the operation of section 109(4).\n\n(3) The provisions of this Act that relate to supportive attorneys apply to an alternative supportive attorney appointed under a supportive attorney appointment, when the alternative supportive attorney is acting under the appointment, in the same way that they apply to any supportive attorney appointed under the appointment.\n\nDivision 4—Making an appointment\n\n","sortOrder":100},{"sectionNumber":"94","sectionType":"section","heading":"Form of appointment","content":"\t94 Form of appointment\n\nA supportive attorney appointment must be in the prescribed form.\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\nS. 95 amended by No. 11/2021 s. 98 (ILA s. 39B(1)).\n\n","sortOrder":101},{"sectionNumber":"95","sectionType":"section","heading":"How should an appointment be executed?","content":"\t95 How should an appointment be executed?\n\n(1) A supportive attorney appointment must be executed—\n\n(i) the principal signing the appointment form; or\n\n(ii) a person, who is eligible to do so under section 96, signing the appointment form in the presence of and at the direction of the principal; and\n\n(b) by 2 persons—\n\n(i) who are present and who witness the signing of the appointment form; and\n\n(ii) who sign and date the appointment form in the presence of the principal and in the presence of each other; and\n\n(c) who certify in writing in the appointment form in the manner required by section 98.\n\nS. 95(2) inserted by No. 11/2021 s. 98.\n\n(2) For the purposes of this section, a supportive attorney appointment may be executed by using the remote witnessing procedure and is a valid supportive attorney appointment.\n\nS. 95(3) inserted by No. 11/2021 s. 98.\n\n(3) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 95(4) inserted by No. 11/2021 s. 98.\n\n(4) For the purposes of this section \"in the presence of\" includes being present by audio visual link in accordance with the remote witnessing procedure.\n\n","sortOrder":102},{"sectionNumber":"96","sectionType":"section","heading":"Who is eligible to sign an appointment form at the direction of the principal?","content":"\t96 Who is eligible to sign an appointment form at the direction of the principal?\n\n(1) A person is eligible to sign an appointment form for a supportive attorney appointment at the direction of the principal if the person—\n\n(a) is of or over 18 years of age; and\n\n(b) is not a witness to the signing of the appointment form; and\n\n(c) is not a supportive attorney under the supportive attorney appointment.\n\n(2) To avoid doubt, a person is not excluded from being eligible to sign an appointment form at the direction of the principal merely because the person is an employee of a supportive attorney for the principal who signs the form while the person is acting in the ordinary course of that employment.\n\n","sortOrder":103},{"sectionNumber":"97","sectionType":"section","heading":"Who can witness the signing of an appointment form?","content":"\t97 Who can witness the signing of an appointment form?\n\n(1) As to the 2 persons who, under section 95(b), witness the signing of an appointment form for a supportive attorney appointment—\n\nS. 97(1)(b) substituted by No. 6/2018 s. 68(Sch. 2 item 97.2).\n\n(b) one person must be a person who is a statutory declaration witness within the meaning of the **Oaths and Affirmations Act 2018**;\n\n(c) one person must not be—\n\n(ii) a relative of the supportive attorney under the appointment; or\n\n(2) A person is eligible to witness the signing of an appointment form for a supportive attorney appointment if the person is—\n\n(a) of or over the age of 18 years; and\n\n(b) is not signing the appointment form at the direction of the principal; and\n\n(c) is not a supportive attorney under the appointment.\n\n(3) To avoid doubt, a person is not excluded from being eligible to witness the signing of an appointment form merely because the person is an employee of a supportive attorney for the principal who signs the form while the person is acting in the ordinary course of that employment.\n\n","sortOrder":104},{"sectionNumber":"98","sectionType":"section","heading":"Certification of witness to signing of appointment form","content":"\t98 Certification of witness to signing of appointment form\n\n(1) A witness who witnesses a principal signing an appointment form for a supportive attorney appointment must—\n\n(a) certify in writing on the form—\n\n(i) that the principal appeared to freely and voluntarily sign the appointment form in the presence of the witness; and\n\n(ii) that, at the time the principal signed the appointment form, the principal appeared to the witness to have decision making capacity in relation to making the supportive attorney appointment; and\n\n(b) state that the witness is not a supportive attorney under the supportive attorney appointment; and\n\n(c) if the witness is acting as a person who is authorised by law to witness the signing of a statutory declaration, state the qualification on which the witness is acting.\n\n(2) A witness who witnesses another person signing an appointment form for a supportive attorney appointment at the direction of the principal must—\n\n(a) certify in writing on the form—\n\n(i) that, in the presence of the witness, the principal appeared to freely and voluntarily direct the person to sign for the principal; and\n\n(ii) that the person signed the form in the presence of the principal and the witness; and\n\n(iii) that, at the time the person signed the form, the principal appeared to the witness to have decision making capacity in relation to making the supportive attorney appointment; and\n\n(i) a person signing the appointment form at the direction of the principal; or\n\n(ii) a supportive attorney under the supportive attorney appointment; and\n\n(c) if the witness is acting as a person who is authorised by law to witness the signing of a statutory declaration, state the qualification on which the witness is acting.\n\nS. 98(4) inserted by No. 11/2021 s. 99.\n\n(4) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 98(5) inserted by No. 11/2021 s. 99.\n\n(5) For the purposes of this section \"in the presence of\" includes being present by audio visual link in accordance with the remote witnessing procedure.\n\nS. 99 amended by No. 11/2021 s. 100 (ILA s. 39B(1)).\n\n","sortOrder":105},{"sectionNumber":"99","sectionType":"section","heading":"Acceptance by supportive attorney","content":"\t99 Acceptance by supportive attorney\n\n(1) A supportive attorney appointment is effective as to a supportive attorney appointed under the appointment if—\n\n(a) in the appointment form the supportive attorney signs a statement of acceptance of appointment that is in the prescribed form; and\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\n(b) a person of or over 18 years of age witnesses the signing of the statement of acceptance under paragraph (a), and signs in the appointment form that he or she has witnessed the signing; and\n\n(c) the supportive attorney states in the appointment form that the supportive attorney—\n\n(i) is eligible under this Act to act as a supportive attorney under a supportive attorney appointment; and\n\n(ii) understands the obligations of a supportive attorney under this Act and the consequences of failing to comply with this Act; and\n\n(iii) undertakes to act in accordance with this Act.\n\nS. 99(2) inserted by No. 11/2021 s. 100.\n\n(2) For the purposes of this section, a supportive attorney appointment is effective as to a supportive attorney appointment if the statement of acceptance is signed using the remote witnessing procedure.\n\nS. 99(3) inserted by No. 11/2021 s. 100.\n\n(3) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 100 amended by No. 11/2021 s. 101 (ILA s. 39B(1)).\n\n","sortOrder":106},{"sectionNumber":"100","sectionType":"section","heading":"Acceptance by alternative supportive attorney","content":"\t100 Acceptance by alternative supportive attorney\n\n(1) A supportive attorney appointment is effective as to an alternative supportive attorney appointed under the appointment if—\n\n(a) in the appointment form the alternative supportive attorney signs a statement of acceptance of appointment that is in the prescribed form; and\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\n(b) a person of or over 18 years of age witnesses the signing of the statement of acceptance under paragraph (a), and signs in the appointment form that he or she has witnessed the signing; and\n\n  (c) the alternative supportive attorney states in the appointment form that the alternative supportive attorney—\n\n(i) is eligible under this Act to act as a supportive attorney under a supportive attorney appointment; and\n\n(ii) understands the obligations of a supportive attorney under this Act and the consequences of failing to comply with this Act; and\n\n(iii) undertakes to act in accordance with this Act; and\n\n(iv) understands the circumstances in which the alternative supportive attorney is authorised to act under this Act; and\n\n(v) is prepared to act in the place of the supportive attorney for whom the alternative supportive attorney is appointed, when authorised to do so under this Act.\n\nSee section 93 for the circumstances in which an alternative supportive attorney is authorised to act in the place of the supportive attorney for whom the alternative supportive attorney is appointed.\n\nS. 100(2) inserted by No. 11/2021 s. 101.\n\n(2) For the purposes of this section, a supportive attorney appointment is effective as to an alternative supportive attorney appointment if the statement of acceptance is signed using the remote witnessing procedure.\n\nS. 100(3) inserted by No. 11/2021 s. 101.\n\n(3) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nDivision 5—Commencement and ending of supportive attorney appointment\n\n","sortOrder":107},{"sectionNumber":"101","sectionType":"section","heading":"When does appointment commence?","content":"\t101 When does appointment commence?\n\n(1) A principal may specify, in an appointment form for a supportive attorney appointment, a time from which, a circumstance in which or an occasion on which the appointment of a supportive attorney commences.\n\n(2) If a specification is not made under subsection (1), the appointment of a supportive attorney commences on its making.\n\n","sortOrder":108},{"sectionNumber":"102","sectionType":"section","heading":"Effect on appointment if principal does not have decision making capacity","content":"\t102 Effect on appointment if principal does not have decision making capacity\n\nA supportive attorney appointment does not have effect for any period, after the making of the appointment, during which the principal does not have decision making capacity for the matters to which the supportive attorney appointment applies.\n\n","sortOrder":109},{"sectionNumber":"103","sectionType":"section","heading":"Revocation of appointment by principal","content":"\t103 Revocation of appointment by principal\n\nThe principal under a supportive attorney appointment may revoke the supportive attorney appointment or the appointment of a supportive attorney or alternative supportive attorney under the supportive attorney appointment, if the principal has decision making capacity in relation to making the supportive attorney appointment.\n\n","sortOrder":110},{"sectionNumber":"104","sectionType":"section","heading":"Form of revocation","content":"\t104 Form of revocation\n\nA revocation under section 103 must be in the prescribed form (***form of revocation***).\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\nS. 105 amended by No. 11/2021 s. 102 (ILA s. 39B(1)).\n\n","sortOrder":111},{"sectionNumber":"105","sectionType":"section","heading":"How should a form of revocation be executed?","content":"\t105 How should a form of revocation be executed?\n\n(1) A form of revocation must be executed—\n\n(i) the principal signing the form; or\n\n(ii) a person, who is eligible to do so under section 106, signing the form in the presence of and at the direction of the principal; and\n\n(b) by one person who—\n\n(i) is present and who witnesses the principal or person signing the form; and\n\n(ii) who signs and dates the form in the presence of the principal.\n\nS. 105(2) inserted by No. 11/2021 s. 102.\n\n(2) For the purposes of this section, a form of revocation may be executed by using the remote witnessing procedure and is a valid form of revocation.\n\nS. 105(3) inserted by No. 11/2021 s. 102.\n\n(3) For the purposes of this section, a signature may be an electronic signature if the remote witnessing procedure is used.\n\nS. 105(4) inserted by No. 11/2021 s. 102.\n\n(4) For the purposes of this section \"in the presence of\" includes being present by audio visual link in accordance with the remote witnessing procedure.\n\n","sortOrder":112},{"sectionNumber":"106","sectionType":"section","heading":"Who is eligible to sign the form of revocation at the direction of the principal?","content":"\t106 Who is eligible to sign the form of revocation at the direction of the principal?\n\n(1) A person is eligible to sign the form of revocation at the direction of the principal if the person—\n\n(b) is not a witness to the signing of the form; and\n\n(c) is not a supportive attorney under the supportive attorney appointment.\n\n(2) To avoid doubt a person is not excluded from being eligible to sign the form of revocation at the direction of the principal merely because the person is an employee of a supportive attorney for the principal who signs the form while the person is acting in the ordinary course of that employment.\n\n","sortOrder":113},{"sectionNumber":"107","sectionType":"section","heading":"Who can witness the signing of the form of revocation?","content":"\t107 Who can witness the signing of the form of revocation?\n\n(1) As to the person who, under section 105(b), witnesses the signing of the form of revocation—\n\n(a) the person must be of or over 18 years of age; and\n\n(b) the person must be authorised to witness the signing of a statutory declaration; and\n\n(c) the person must not be—\n\n(ii) a relative of a supportive attorney under the appointment; or\n\n(iii) a care worker or an accommodation provider of the principal; or\n\n(iv) a person signing the form at the direction of the principal; or\n\n(v) a supportive attorney under the appointment.\n\n(2) To avoid doubt a person is not excluded from being eligible to witness the signing of the form of revocation merely because the person is an employee of a supportive attorney for the principal who signs the form while the person is acting in the ordinary course of that employment.\n\n","sortOrder":114},{"sectionNumber":"108","sectionType":"section","heading":"Notification of revocation by principal","content":"\t108 Notification of revocation by principal\n\n(1) On revoking a supportive attorney appointment under section 103, the principal must take reasonable steps to inform any supportive attorneys under the appointment that it has been revoked.\n\n(2) On revoking the appointment of a supportive attorney or alternative supportive attorney under section 103, the principal must take reasonable steps to inform that supportive attorney or alternative supportive attorney and all other supportive attorneys and alternative supportive attorneys under the appointment that it has been revoked.\n\n(3) A failure by the principal to give a notification under this section does not affect the validity of the revocation.\n\n","sortOrder":115},{"sectionNumber":"109","sectionType":"section","heading":"Other revocation of supportive attorney appointment","content":"\t109 Other revocation of supportive attorney appointment\n\n(1) A supportive attorney appointment is revoked on the death of the principal.\n\n(2) When a supportive attorney under a supportive attorney appointment dies, the supportive attorney appointment is revoked so far as it gives power to that supportive attorney.\n\n(3) A supportive attorney appointment is revoked, so far as it gives power to a supportive attorney, if, after appointment the supportive attorney becomes a person who does not have decision making capacity for the matters to which the supportive attorney appointment applies.\n\n(4) A supportive attorney appointment is revoked, so far as it gives power to a supportive attorney, if, after appointment—\n\n(a) the supportive attorney becomes an insolvent under administration; or\n\n(b) the supportive attorney becomes a care worker, a health provider or an accommodation provider for the principal; or\n\n(c) for a supportive attorney for financial matters, the supportive attorney is convicted or found guilty of an offence involving dishonesty.\n\nVCAT also has power to revoke a supportive attorney appointment, see Part 8.\n\n","sortOrder":116},{"sectionNumber":"110","sectionType":"section","heading":"Notification of revocation by operation of section 109(4)","content":"\t110 Notification of revocation by operation of section 109(4)\n\n(1) If a supportive attorney appointment is revoked by the operation of section 109(4), the supportive attorney must take all reasonable steps to notify the following people—\n\n(b) any other supportive attorney;\n\n(c) any alternative supportive attorney.\n\n(2) A failure by the supportive attorney to give a notification under this section does not affect the validity of the revocation.\n\n","sortOrder":117},{"sectionNumber":"111","sectionType":"section","heading":"Resignation","content":"\t111 Resignation\n\nA supportive attorney or an alternative supportive attorney may resign from the appointment as a supportive attorney or alternative supportive attorney.\n\n","sortOrder":118},{"sectionNumber":"112","sectionType":"section","heading":"Form of resignation","content":"\t112 Form of resignation\n\nThe resignation of a supportive attorney or an alternative supportive attorney under section 111 must be in the prescribed form.\n\nSee section 53 of the **Interpretation of Legislation Act 1984** for the effect of a form in or to the like effect of the prescribed form.\n\n","sortOrder":119},{"sectionNumber":"113","sectionType":"section","heading":"Notification of resignation","content":"\t113 Notification of resignation\n\n(1) A person who resigns as supportive attorney or alternative supportive attorney under section 111 must take all reasonable steps to inform the following persons of the resignation—\n\n(b) any other supportive attorney and alternative supportive attorney.\n\n(2) A failure by the supportive attorney or alternative supportive attorney to give a notification under this section does not affect the validity of the resignation.\n\nDivision 6—Protection and relief from liability\n\n","sortOrder":120},{"sectionNumber":"114","sectionType":"section","heading":"Protection for supportive attorney or other person who does not know appointment does not have effect","content":"\t114 Protection for supportive attorney or other person who does not know appointment does not have effect\n\n(1) A supportive attorney—\n\n(a) who purports to exercise a power under the supportive attorney appointment; and\n\n(b) who does so in good faith and without knowing the appointment does not have effect—\n\nis entitled to rely on the appointment as against the principal and any other person, despite the fact that the appointment does not have effect.\n\n(2) A person—\n\n(a) who acts in reliance on the purported exercise by a supportive attorney of a power under a supportive attorney appointment; and\n\n(b) who acts in good faith and without knowing the appointment does not have effect—\n\nis entitled to rely on the purported exercise of the power as against the principal and any other person, despite the fact that the appointment does not have effect.\n\n(3) For the purpose of this section, a supportive attorney appointment does not have effect if—\n\n(a) the appointment is invalid; or\n\n(b) the appointment is revoked; or\n\n(c) the appointment does not have effect under section 102.\n\n(4) For the purpose of this section knowing that a supportive attorney appointment does not have effect includes the following—\n\n(a) knowing of the happening of an event that causes the appointment not to have effect;\n\n(b) having reason to believe that the appointment does not have effect.\n\nPart 8—VCAT jurisdiction\n\nDivision 1—Interpretation\n\n\t115 Interpretation\n\n***VCAT Act*** means the **Victorian Civil and Administrative Tribunal Act 1998**.\n\nDivision 2—VCAT hearing at first instance\n\n","sortOrder":121},{"sectionNumber":"116","sectionType":"section","heading":"Matters about which VCAT may make an order","content":"\t116 Matters about which VCAT may make an order\n\n(1) On application under Division 3, or on its own initiative in any hearing before it, VCAT may make an order about any one or more of the following matters in relation to an enduring power of attorney—\n\n(a) any matter for or with respect to an attorney's power under the enduring power of attorney including the following—\n\n(i) the scope of the power of attorney;\n\n(ii) the exercise of the power of attorney;\n\n(b) the effect of any failure to comply with the method of execution of enduring powers of attorney or of instruments of revocation of enduring powers of attorney required by this Act;\n\n(c) the validity of the enduring power of attorney;\n\n(d) the validity of a transaction by an attorney under the enduring power of attorney if VCAT is satisfied there has been a failure to comply with Part 6 or for any other reason;\n\n(e) the lodgement with VCAT of accounts or other documents relating to the exercise of the enduring power of attorney over a specified period by the attorney responsible under this Act for keeping them;\n\n(f) the examination and auditing of accounts or other documents relating to the exercise of the enduring power of attorney over a specified period, including—\n\n(i) determining the person to be responsible for examining or auditing the accounts or other documents; and\n\n(ii) whether the person responsible under subparagraph (i) for carrying out the examination or audit should be paid and the amount of any such payment;\n\n(g) giving a report on any examination and audit conducted under an order under paragraph (f) to—\n\n(i) VCAT; and\n\n(ii) the applicant or any other person ordered by VCAT;\n\n(h) any other matter VCAT considers necessary in relation to the enduring power of attorney.\n\n(2) On application under Division 3, or on its own initiative in any hearing before it, VCAT may make an order about any one or more of the following matters in relation to a supportive attorney appointment—\n\n(a) the principal's decision making capacity for the matters to which the supportive attorney appointment applies, whether at the time the appointment was made or any time after that, and the effect of the principal not having decision making capacity on the supportive attorney appointment;\n\n(b) the effect on the supportive attorney appointment of any failure to comply with a requirement of this Act;\n\n(c) whether the supportive attorney has failed to comply with the terms of the appointment or is exercising undue influence over the principal;\n\n(d) any other matter VCAT considers necessary in relation to the supportive attorney appointment.\n\nUnder the VCAT Act VCAT has powers to give directions and make declarations.\n\n","sortOrder":122},{"sectionNumber":"117","sectionType":"section","heading":"Considerations for failure to comply with execution requirements","content":"\t117 Considerations for failure to comply with execution requirements\n\n(1) Under section 116(1)(b) VCAT must not decide that an enduring power of attorney is valid, even though the requirements for execution of the power of attorney under this Act were not complied with, unless VCAT is satisfied that—\n\n(a) the principal and attorney intended the document to be an enduring power of attorney; and\n\n(b) at the time the document was signed, the principal had decision making capacity in relation to the making of the enduring power of attorney; and\n\n(c) the principal—\n\n(i) signed the document freely and voluntarily; or\n\n(ii) freely and voluntarily directed the person who signed the document for the principal to do so,  and was present when the person signed the document.\n\n(2) Under section 116(1)(b) VCAT must not decide that the revocation of an enduring power of attorney is valid, even though the requirements for execution of the revocation under this Act were not complied with, unless VCAT is satisfied that—\n\n(a) the principal intended to revoke the enduring power of attorney; and\n\n(b) at the time the instrument of revocation appeared to be  signed, the principal had decision making capacity in relation to making the enduring power of attorney giving the same power; and\n\n(c) the principal—\n\n(i) signed the instrument of revocation freely and voluntarily; or\n\n(ii) freely and voluntarily directed the person who signed the instrument of revocation for the principal to do so, and was present when the person signed the instrument of revocation.\n\n","sortOrder":123},{"sectionNumber":"118","sectionType":"section","heading":"Considerations for invalidity of enduring power of attorney","content":"\t118 Considerations for invalidity of enduring power of attorney\n\nUnder section 116(1)(c) VCAT must not make an order declaring that an enduring power of attorney is invalid unless VCAT is satisfied that—\n\n(a) the principal did not have decision making capacity in relation to making the enduring power of attorney at the time the enduring power of attorney was made; or\n\n(b) at the time the enduring power of attorney was made it did not comply with the requirements of the Act; or\n\n(c) dishonesty or undue influence was used on the principal to make the enduring power of attorney; or\n\n(d) the enduring power of attorney was legally invalid when entered into.\n\n","sortOrder":124},{"sectionNumber":"119","sectionType":"section","heading":"Effect of finding of invalidity on enduring power of attorney","content":"\t119 Effect of finding of invalidity on enduring power of attorney\n\nIf VCAT makes an order declaring that an enduring power of attorney is invalid under section 116(1)(c), the enduring power of attorney is void from its commencement.\n\n","sortOrder":125},{"sectionNumber":"120","sectionType":"section","heading":"Nature of VCAT orders","content":"\t120 Nature of VCAT orders\n\n(1) In an order under section 116 in relation to an enduring power of attorney, VCAT may do any one or more of the following—\n\n(a) revoke all or part of the enduring power of attorney;\n\n(b) revoke the appointment of an attorney under the enduring power of attorney;\n\n(c) vary the effect of the enduring power of attorney;\n\n(d) suspend the enduring power of attorney for a specified period, either generally or as to a specified matter;\n\n(e) authorise or validate a transaction for the purpose of section 65;\n\n(f) make any other order it considers necessary in relation to the enduring power of attorney;\n\n(g) do any other thing that VCAT is required or permitted to do by this Act.\n\n(2) Before making an order under subsection (1)(b) to revoke the appointment of an attorney under an enduring power of attorney VCAT must be satisfied that—\n\n(a) the attorney is not complying with provisions of this Act that relate to enduring powers of attorney; and\n\n(b) the principal does not have decision making capacity in relation to making an enduring power of attorney giving the same power.\n\n(3) In an order under section 116 in relation to a supportive attorney appointment, VCAT may do any one or more of the following—\n\n(a) revoke the supportive attorney appointment or the appointment of a supportive attorney under the supportive attorney appointment;\n\n(b) vary the effect of the supportive attorney appointment;\n\n(c) suspend the supportive attorney appointment for a specified period, either generally or as to a specified matter;\n\n(d) make any other order it considers necessary in relation to the supportive attorney appointment.\n\n","sortOrder":126},{"sectionNumber":"121","sectionType":"section","heading":"Advisory opinions","content":"\t121 Advisory opinions\n\nThe Tribunal may give an advisory opinion on any matter relating to an enduring power of attorney or a supportive attorney appointment that is referred to it by a person referred to in section 122(1)(a), (b), (c) or (e).\n\nDivision 3—Application and procedure, VCAT hearing at first instance\n\n","sortOrder":127},{"sectionNumber":"122","sectionType":"section","heading":"Who can apply for an order?","content":"\t122 Who can apply for an order?\n\n(1) A person may apply to VCAT for an order under Division 2 as to an enduring power of attorney or a supportive attorney appointment if the person is—\n\n(a) the principal; or\n\n(ii) a supportive attorney appointment, any supportive attorney under the supportive attorney appointment; or\n\n(c) the Public Advocate; or\n\n(d) the nearest relative of the principal; or\n\n(e) any other person whom VCAT is satisfied has a special interest in the affairs of the principal.\n\n(2) To avoid doubt, nothing in this Act is to be taken to prevent a person to whom subsection (1) applies from applying to VCAT for an order under Division 2 as to an enduring power of attorney, in circumstances where more than one attorney has been appointed under the enduring power of attorney and it is impractical or impossible for the attorneys under the enduring power of attorney to exercise power in the manner required by the enduring power of attorney or by this Act.\n\n","sortOrder":128},{"sectionNumber":"123","sectionType":"section","heading":"Who is entitled to notice?","content":"\t123 Who is entitled to notice?\n\n(1) For an application for an order under Division 2, each entitled person is a person who is entitled to notice under section 72(1)(b) of the VCAT Act.\n\nAn applicant for a VCAT order must serve a copy of the application on any person who is entitled to notice of the application under the Act that gives the jurisdiction to VCAT (in this case, this Act), see section 72(1) of the VCAT Act.\n\n(2) For the hearing of an application for an order under Division 2, each entitled person is a person who is entitled to notice under section 99(1)(b) of the VCAT Act.\n\nThe principal registrar of VCAT must give notice of the time and place for the hearing of a proceeding dealing with an application for a VCAT order to each person who is entitled to that notice under the Act that gives the jurisdiction to VCAT (in this case, this Act), see section 99(1) of the VCAT Act.\n\n(3) For an order in a proceeding under the VCAT Act hearing an application under Division 2, each entitled person is a person who is entitled to notice under section 116(2)(a) or (b) of that Act.\n\nThe persons who must be given a copy of a VCAT order in a proceeding dealing with an application for a VCAT order include any person who is entitled to the copy under the Act that gives the jurisdiction to VCAT (in this case, this Act), see section 116(2) of the VCAT Act.\n\nS. 123(4) amended by No. 64/2016 s. 12.\n\n(4) In this section ***entitled person*** means each of the following—\n\n(ii) a supportive attorney appointment, any supportive attorney under the supportive attorney appointment;\n\n(c) the applicant for the order, if the applicant is not a person otherwise specified in this definition;\n\n(d) any other person whom VCAT determines must be notified;\n\n(e) those of the following whom VCAT so determines—\n\nS. 123(4)(e)(i) substituted by No. 13/2019 s. 221(Sch. 1 item 38.3).\n\n(i) any guardian for the principal, within the meaning of the **Guardianship and Administration Act 2019**;\n\nS. 123(4)(e)(ii) repealed by No. 13/2019 s. 221(Sch. 1 item 38.4).\n\nS. 123(4)(e)(iii) substituted by No. 13/2019 s. 221(Sch. 1 item 38.5).\n\n(iii) any administrator for the principal appointed in an administration order made under the **Guardianship and Administration Act 2019**;\n\nS. 123(4)(e)(iv) substituted by No. 13/2019 s. 221(Sch. 1 item 38.5).\n\n(iv) the primary carer of the principal, within the meaning of the **Medical Treatment Planning and Decisions Act 2016**;\n\n(v) any domestic partner of the principal;\n\n(vi) the nearest relative of the principal;\n\n(vii) the Public Advocate;\n\n(viii) any other person.\n\n","sortOrder":129},{"sectionNumber":"124","sectionType":"section","heading":"Who are parties to the proceeding?","content":"\t124 Who are parties to the proceeding?\n\nFor a proceeding for the hearing of an application under Division 2, the following persons are specified for the purpose of section 59(1)(a)(iv) of the VCAT Act—\n\n(ii) for a supportive attorney appointment, any supportive attorney under the supportive attorney appointment.\n\nThe parties to a VCAT proceeding include the applicant and any person who is specified by the Act that gives the jurisdiction to VCAT (in this case, this Act), see section 59(1) of the VCAT Act.\n\nDivision 4—VCAT rehearing\n\n","sortOrder":130},{"sectionNumber":"125","sectionType":"section","heading":"Requirement to rehear","content":"\t125 Requirement to rehear\n\n(1) On application under Division 5, VCAT must rehear an application for an order under Division 2 on which VCAT has made an order.\n\n(2) In conducting a rehearing under this section VCAT has all the functions and powers that VCAT had for the matter at first instance.\n\n","sortOrder":131},{"sectionNumber":"126","sectionType":"section","heading":"Matter that cannot be subject of a rehearing","content":"\t126 Matter that cannot be subject of a rehearing\n\nA person is not entitled to apply for a rehearing of an application if—\n\n(a) the order at first instance was to suspend an enduring power of attorney or a supportive attorney appointment; or\n\n(b) the order at first instance was made by VCAT constituted by the President, whether with or without others; or\n\n(c) the application was for a rehearing or leave to apply for a rehearing.\n\n","sortOrder":132},{"sectionNumber":"127","sectionType":"section","heading":"Powers of VCAT on rehearing","content":"\t127 Powers of VCAT on rehearing\n\nIn determining a rehearing, VCAT may decide to—\n\n(a) affirm the order of VCAT at first instance; or\n\n(b) vary the order of VCAT at first instance; or\n\n(c) set aside the order of VCAT at first instance and make another order in substitution for it.\n\n","sortOrder":133},{"sectionNumber":"128","sectionType":"section","heading":"Effect of, stay of first instance order pending rehearing","content":"\t128 Effect of, stay of first instance order pending rehearing\n\n(1) Subject to subsection (2), the making of an application for a rehearing does not affect the operation of any order to which the application relates or prevent the taking of action to enforce the order.\n\n(2) VCAT may make an order staying the operation of an order to which an application for rehearing relates pending the determination of the rehearing of the application.\n\n","sortOrder":134},{"sectionNumber":"129","sectionType":"section","heading":"Nature of rehearing","content":"\t129 Nature of rehearing\n\nSubject to any contrary provision in this Division or Division 5, the VCAT Act applies to a rehearing under this Division as if it were a hearing under that Act.\n\nDivision 5—Application and procedure, VCAT rehearing\n\n","sortOrder":135},{"sectionNumber":"130","sectionType":"section","heading":"Who can apply for a rehearing?","content":"\t130 Who can apply for a rehearing?\n\n(1) A person may apply to VCAT for a rehearing under Division 4—\n\n(a) if the person was a party to the hearing of the application at first instance; or\n\nS. 130(1)(b) substituted by No. 64/2016 s. 13(1).\n\n(b) if the person was given notice of the hearing of the application at first instance but was not a party to the hearing of the application, with the leave of VCAT; or\n\nS. 130(1)(c) inserted by No. 64/2016 s. 13(1).\n\n(c) if the person was not given notice of the hearing of the application at first instance and the person has a special interest in the affairs of the principal, with the leave of VCAT; or\n\nS. 130(1)(d) inserted by No. 64/2016 s. 13(1).\n\n(d) if the person is the Public Advocate, without the leave of VCAT.\n\nS. 130(2) repealed by No. 64/2016 s. 13(2).\n\n","sortOrder":136},{"sectionNumber":"131","sectionType":"section","heading":"Who is entitled to notice of rehearing?","content":"\t131 Who is entitled to notice of rehearing?\n\n(1) For an application for a rehearing, each person who was entitled to notice of the application for the hearing at first instance is a person who is entitled to notice under section 72(1)(b) of the VCAT Act.\n\n(2) For the hearing of an application for a rehearing, each person who was entitled to notice of the hearing at first instance is a person who is entitled to notice under section 99(1)(b) of the VCAT Act.\n\n(3) For an order in a proceeding under the VCAT Act rehearing an application for an order under Division 2, each person who was entitled to notice of an order in the hearing at first instance is a person who is entitled to notice under section 116(2)(b) of that Act.\n\n","sortOrder":137},{"sectionNumber":"132","sectionType":"section","heading":"Who are parties to the proceeding for the rehearing?","content":"\t132 Who are parties to the proceeding for the rehearing?\n\nFor a proceeding for the rehearing of an application under Division 2, each person who was a party to the proceeding at first instance is specified for the purpose of section 59(1)(a)(iv) of the VCAT Act.\n\n","sortOrder":138},{"sectionNumber":"133","sectionType":"section","heading":"Time limit for making application","content":"\t133 Time limit for making application\n\n(1) An application for a rehearing or for leave to apply for a rehearing must be made within 28 days after the day of the order.\n\n(2) For the purpose of subsection (1), if VCAT gives oral reasons for making an order and a party then requests written reasons under section 117 of the VCAT Act, the day on which the written reasons are given to the party is taken to be the day of the order.\n\nDivision 6—Effect on VCAT Act\n\n","sortOrder":139},{"sectionNumber":"134","sectionType":"section","heading":"Effect on VCAT Act","content":"\t134 Effect on VCAT Act\n\nExcept as provided for in this Part, nothing in this Part is to be taken to affect the operation of the VCAT Act.\n\nPt 8 Div. 7 (Heading and ss 134A–134C) inserted by No. 41/2017 s. 25.\n\n","sortOrder":140},{"sectionNumber":"Div 7","sectionType":"division","heading":"Powers of VCAT with respect to wills","content":"Division 7—Powers of VCAT with respect to wills\n\nS. 134A inserted by No. 41/2017 s. 25.\n\n","sortOrder":141},{"sectionNumber":"134A","sectionType":"section","heading":"VCAT may open will","content":"\t134A VCAT may open will\n\nVCAT may open and read any paper or writing that is a will, a revoked will, a purported will or a copy of a will of—\n\n(a) a principal under an enduring power of attorney who does not have testamentary capacity; or\n\n(b) a deceased person who, immediately before the person died, was a principal under an enduring power of attorney.\n\nS. 134B inserted by No. 41/2017 s. 25.\n\n","sortOrder":142},{"sectionNumber":"134B","sectionType":"section","heading":"VCAT may compel production of will","content":"\t134B VCAT may compel production of will\n\nVCAT may make an order compelling a person who has possession or control of a will, a revoked will or a purported will of a principal who does not have testamentary capacity to produce that document to VCAT—\n\n(a) for the purposes of section 134A; or\n\n(b) on the application of an attorney under an enduring power of attorney.\n\nS. 134C inserted by No. 41/2017 s. 25.\n\n","sortOrder":143},{"sectionNumber":"134C","sectionType":"section","heading":"VCAT may make copy of will available to attorney","content":"\t134C VCAT may make copy of will available to attorney\n\nVCAT may make available to an attorney under an enduring power of attorney a full or redacted copy of a will, a revoked will or a purported will of the principal if the principal does not have testamentary capacity.\n\n","sortOrder":144},{"sectionNumber":"Part 9","sectionType":"part","heading":"General","content":"Part 9—General\n\n","sortOrder":145},{"sectionNumber":"135","sectionType":"section","heading":"Offences as to enduring powers of attorney","content":"\t135 Offences as to enduring powers of attorney\n\n(1) A person must not dishonestly obtain an enduring power of attorney—\n\n(2) A person must not dishonestly obtain the revocation of an enduring power of attorney—\n\n(3) An attorney under an enduring power of attorney must not dishonestly use the enduring power of attorney—\n\n(a) to obtain financial advantage for the attorney or another person; or\n\n(4) In this section a reference to an enduring power of attorney includes a reference to an enduring power of attorney that is invalid or has been revoked.\n\n**Notes**\n\n1 The offences under this section are indictable offences that may be heard summarily.\n\n2 Section 137 applies to an offence against subsection (1), (2) or (3).\n\n\t136 Offences of dishonestly obtaining or using supportive attorney appointment\n\n(1) A person must not dishonestly obtain the supportive attorney appointment—\n\nPenalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both.\n\n(2) A supportive attorney under a supportive attorney appointment must not dishonestly use the supportive attorney appointment—\n\n(a) to obtain financial advantage for the supportive attorney or another person; or\n\nPenalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both.\n\n(3) In this section a reference to supportive attorney appointment includes a reference to a supportive attorney appointment that is invalid or has been revoked.\n\nThe offences under this section are indictable offences that may be heard summarily.\n\n","sortOrder":146},{"sectionNumber":"137","sectionType":"section","heading":"Criminal liability of officers of bodies corporate—failure to exercise due diligence","content":"\t137 Criminal liability of officers of bodies corporate—failure to exercise due diligence\n\n(1) If a body corporate commits an offence against a provision of section 135(1), (2) or (3) an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.\n\n(2) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—\n\n(a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and\n\n(b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and\n\n(c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and\n\n(d) any other relevant matter.\n\n(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.\n\n(4) An officer of a body corporate may commit an offence against section 135(1), (2) or (3) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.\n\n(5) In this section—\n\n***body corporate*** has the same meaning as corporation has in section 57A of the Corporations Act;\n\n***officer***, in relation to a body corporate, means—\n\n(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or\n\n(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.\n\n","sortOrder":147},{"sectionNumber":"138","sectionType":"section","heading":"Recognition of enduring powers of attorney made in other States and Territories","content":"\t138 Recognition of enduring powers of attorney made in other States and Territories\n\n(1) If an enduring power of attorney is made in another State or a Territory of the Commonwealth and complies with the requirements of that other State or Territory, 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 is taken to be an enduring power of attorney made under, and in compliance with, this Act.\n\n(2) This section applies to an enduring power of attorney made in another State or a Territory of the Commonwealth, whether made before or after the commencement of this Act.\n\n(3) In this section, a reference to an enduring power of attorney made in another State or a Territory of the Commonwealth includes a reference to an instrument in the nature of an enduring power of attorney, whether or not described as an enduring power of attorney.\n\nS. 139 substituted by No. 11/2021 s. 103.\n\n","sortOrder":148},{"sectionNumber":"139","sectionType":"section","heading":"Regulations","content":"\t139 Regulations\n\n(1) The Governor in Council may make regulations for or with respect to—\n\n(a) requirements for remote witnessing procedures and the duties of witnesses and principals, including, but not limited to, different requirements for—\n\n(i) different documents or classes of document; or\n\n(ii) different witnesses or classes of witness; or\n\n(iii) different principals or classes of principal; or\n\n(iv) different forms or processes for the use of electronic signatures or the use or form of documents in electronic formats;\n\n(b) forms;\n\n(c) fees;\n\n(d) persons or classes of person to be special witnesses;\n\n(e) prescribing penalties not exceeding 20 penalty units for a contravention of the regulations;\n\n(f) any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.\n\n(2) The regulations may—\n\n(a) be of general or limited application;\n\n(b) differ according to differences in time, place or circumstance;\n\n(c) leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person;\n\n(d) provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations whether—\n\n(i) unconditionally or on specified conditions; and\n\n(ii) either wholly or to the extent specified in the regulations.\n\nPt 10 (Heading) substituted by No. 64/2016 s. 14.\n\nPart 10—Savings and transitional provisions\n\nDivision 1—Transitional provisions\n\n\t140 Definitions\n\n***old enduring power of attorney*** means an enduring power of attorney, within the meaning of Part XIA of the **Instruments Act 1958** (as in force before the commencement of section 144(2)), being an enduring power of attorney in force immediately before that commencement;\n\n***old enduring power of guardianship*** means an appointment of a person as an enduring guardian, made under Division 5A of Part 4 of the **Guardianship and Administration Act 1986** (as in force before the commencement of section 145), being an appointment in force immediately before that commencement;\n\n***old non-enduring power of attorney*** means a power of attorney, to which Part XI of the **Instruments Act 1958** (as in force before the commencement of section 144(1)) applied, being a power of attorney in force immediately before that commencement.\n\n","sortOrder":149},{"sectionNumber":"141","sectionType":"section","heading":"Transitional provision—non-enduring powers of attorney","content":"\t141 Transitional provision—non-enduring powers of attorney\n\nThe amendments made to the **Instruments Act 1958** by section 144(1) of this Act are not to be taken to affect the validity of an old non-enduring power of attorney and the law as in force under the **Instruments Act 1958** immediately before the commencement of section 144(1) is taken to continue to have effect in relation to the old non‑enduring power of attorney.\n\n","sortOrder":150},{"sectionNumber":"142","sectionType":"section","heading":"Transitional provision—old enduring powers of attorney","content":"\t142 Transitional provision—old enduring powers of attorney\n\n(1) The amendments made to the **Instruments Act 1958** by section 144(2) of this Act are not to be taken to affect the validity of an old enduring power of attorney and, subject to subsection (2), the law as in force under the **Instruments Act 1958** immediately before the commencement of section 144(2) is taken to continue to have effect in relation to the old enduring power of attorney.\n\n(2) The following provisions of this Act are taken to apply to an old enduring power of attorney, as if it were an enduring power of attorney made under this Act—\n\n(a) section 4;\n\n(b) section 42;\n\n(c) Divisions 2, 3 and 4 of Part 6;\n\n(d) section 82;\n\n(e) section 83;\n\n(f) section 116(1)(a), (e), (f) and (g);\n\n(g) Divisions 2, 3, 4 and 5 of Part 8, to the extent that they relate to section 116(1)(a), (e), (f) and (g).\n\n(3) For the purpose of this section, a reference in any Act to an enduring power of attorney made under the **Powers of Attorney Act 2014** includes a reference to an old enduring power of attorney.\n\n","sortOrder":151},{"sectionNumber":"143","sectionType":"section","heading":"Transitional provision—old enduring powers of guardianship","content":"\t143 Transitional provision—old enduring powers of guardianship\n\n(1) The amendments made to the **Guardianship and Administration Act 1986** by Division 2 are not to be taken to affect the validity of an old enduring power of guardianship and, subject to subsection (2), the law as in force under the **Guardianship and Administration Act 1986**, immediately before the commencement of Division 2, is taken to continue to have effect in relation to the old enduring power of guardianship.\n\n(2) The following provisions of this Act are taken to apply to an old enduring power of guardianship, as if it were an enduring power of attorney made under this Act—\n\n(a) section 4;\n\n(b) section 42;\n\n(c) Divisions 2, 3 and 4 of Part 6;\n\n(d) section 82;\n\n(e) section 83;\n\n(f) section 116(1)(a), (e), (f) and (g);\n\n(g) Divisions 2, 3, 4 and 5 of Part 8, to the extent that they relate to section 116(1)(a), (e), (f) and (g).\n\nDivision 2—Amendment of the Instruments Act 1958 and the Guardianship and Administration Act 1986\n\n","sortOrder":152},{"sectionNumber":"144","sectionType":"section","heading":"Amendment of the Instruments Act 1958","content":"\t144 Amendment of the Instruments Act 1958\n\n(1) Part XI of the **Instruments Act 1958** is **repealed**.\n\n(2) Part XIA of the **Instruments Act 1958** is **repealed**.\n\n\t145 Repeal of Division 5A of Part 4 of the Guardianship and Administration Act 1986\n\nDivision 5A of Part 4 of the **Guardianship and Administration Act 1986** is **repealed**.\n\n\t146 Repeal of sections 86 and 86A of the Guardianship and Administration Act 1986\n\nSections 86 and 86A of the **Guardianship and Administration Act 1986** are **repealed**.\n\n\t147 Repeal of Schedule 4 to the Guardianship and Administration Act 1986\n\nSchedule 4 to the **Guardianship and Administration Act 1986** is **repealed**.\n\n\t148 Amendment of the Guardianship and Administration Act 1986\n\n(1) In section 3(1) of the **Guardianship and Administration Act 1986**, the definitions of ***appointor*** and ***enduring guardian*** are **repealed**.\n\n(2) In the definition of ***guardian*** in section 3(1) of the **Guardianship and Administration Act 1986**—\n\n(a) in paragraph (b), for \"35; or\" **substitute** \"35;\";\n\n(b) paragraph (c) is **repealed**.\n\n(3) Section 4(1)(e) of the **Guardianship and Administration Act 1986** is **repealed**.\n\n(4) For section 37(1)(d) of the **Guardianship and Administration Act 1986** **substitute**—\n\n\"(d) a person appointed by the patient as an attorney under an enduring power of attorney under the **Powers of Attorney Act 2014** with power to make decisions in relation to the proposed procedure or treatment;\".\n\n(5) In section 42N(6)(d) of the **Guardianship and Administration Act 1986**, for \"the enduring guardian\" **substitute** \"the attorney under the enduring power of attorney under the **Powers of Attorney Act 2014**,\".\n\n(6) In section 42V(6)(d) of the **Guardianship and Administration Act 1986**, for \"the enduring guardian\" **substitute** \"the attorney under the enduring power of attorney under the **Powers of Attorney Act 2014**,\".\n\nPt 10 Div. 3 (Heading and ss 149–165) amended by No. 20/2015 s. 53, substituted as Pt 10 Div. 3 (Heading and ss 149–154) by No. 64/2016 s. 15.\n\nDivision 3—Powers of Attorney Amendment Act 2016\n\nS. 149 substituted by No. 64/2016 s. 15.\n\n","sortOrder":153},{"sectionNumber":"149","sectionType":"section","heading":"Definition","content":"\t149 Definition\n\nIn this Division, ***enduring power of attorney (2014)*** means a power of attorney made under section 22 as in force immediately before the commencement of section 4 of the **Powers of Attorney Amendment Act 2016**.\n\nS. 150 substituted by No. 64/2016 s. 15.\n\n","sortOrder":154},{"sectionNumber":"150","sectionType":"section","heading":"Interpretation of Legislation Act 1984 not limited","content":"\t150 Interpretation of Legislation Act 1984 not limited\n\nNothing in this Division limits the operation of the **Interpretation of Legislation Act 1984**.\n\nS. 151 substituted by No. 64/2016 s. 15.\n\n","sortOrder":155},{"sectionNumber":"151","sectionType":"section","heading":"Enduring power of attorney (2014)","content":"\t151 Enduring power of attorney (2014)\n\n(1) Despite the commencement of section 4 of the **Powers of Attorney Amendment Act 2016**, an enduring power of attorney (2014) continues in existence for so long as that power of attorney is in force on and after that commencement.\n\n(2) On and from the commencement of section 6 of the **Powers of Attorney Amendment Act 2016**, section 55 as amended by section 6 of that Act applies to an enduring power of attorney (2014).\n\n(3) Despite the commencement of section 8 of the **Powers of Attorney Amendment Act 2016**, section 62 of this Act as in force immediately before the commencement of section 8 continues to apply to an enduring power of attorney (2014).\n\nS. 152 substituted by No. 64/2016 s. 15.\n\n","sortOrder":156},{"sectionNumber":"152","sectionType":"section","heading":"Old enduring power of attorney","content":"\t152 Old enduring power of attorney\n\nDespite section 142(2), on and from the commencement of section 6 of the **Powers of Attorney Amendment Act 2016**—\n\n(a) Divisions 1 and 2 of Part 5 apply to an old enduring power of attorney that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act; and\n\n(b) Division 3 of Part 5 as amended by section 6 applies to an old enduring power of attorney that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act.\n\nS. 153 substituted by No. 64/2016 s. 15.\n\n","sortOrder":157},{"sectionNumber":"153","sectionType":"section","heading":"Old enduring power of guardianship","content":"\t153 Old enduring power of guardianship\n\nDespite section 143(2), on and from the commencement of section 6 of the **Powers of Attorney Amendment Act 2016**—\n\n(a) Divisions 1 and 2 of Part 5 apply to an old enduring power of guardianship that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act; and\n\n(b) Division 3 of Part 5 as amended by section 6 of that Act applies to an old enduring power of guardianship that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act.\n\nS. 154 substituted by No. 64/2016 s. 15.\n\n","sortOrder":158},{"sectionNumber":"154","sectionType":"section","heading":"Applications for VCAT rehearing","content":"\t154 Applications for VCAT rehearing\n\nSection 130 as amended by section 13 of the **Powers of Attorney Amendment Act 2016** applies to an application made under section 130 that has been made but not determined immediately before that amendment.\n\nPt 10 Div. 4 (Heading and s. 155) inserted by No. 69/2016 s. 152.\n\nDivision 4—Transitional—Medical Treatment Planning and Decisions Act 2016\n\nS. 155 inserted by No. 69/2016 s. 152.\n\n","sortOrder":159},{"sectionNumber":"155","sectionType":"section","heading":"Saving—effect of broader definition of *personal matter*","content":"\t155 Saving—effect of broader definition of *personal matter*\n\nDespite the amendment of the definition of ***personal matter*** in section 3(1) by the **Medical Treatment Planning and Decisions Act 2016**—\n\n(a) an enduring power of attorney as in force immediately before that amendment that applies in respect of medical treatment or medical research procedures continues to apply in the same manner on and after that amendment as if that amendment had not been made; and\n\n(b) a supportive attorney whose appointment is in force immediately before that amendment that applies in respect of medical treatment or medical research procedures continues to apply in the same manner on and after that amendment.\n\nS. 156 inserted by No. 11/2021 s. 104.\n\n","sortOrder":160},{"sectionNumber":"156","sectionType":"section","heading":"Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021","content":"\t156 Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021\n\nOn and from the commencement of Part 13 of the **Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021**, any power of attorney or other document under this Act signed, executed or witnessed under this Act as modified by Part 4 of the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (as in force immediately before their revocation) continues to be a valid power of attorney or other document despite that revocation.\n\nSchedule\n\nForm of General Non-enduring Power of Attorney\n\nThis general non-enduring power of attorney is made under Part 2 of the **Powers of Attorney Act 2014** and has effect as a deed.\n\nThis general non-enduring power of attorney is made on:\n\n(*insert date of making*)\n\n**I**, (*insert name of person making power of attorney*)\n\nof (*insert address of person making power of attorney*)\n\n**appoint** (*insert name of attorney, or attorneys if appointing more than one*)\n\nof (*insert address(es) of attorney(s)*)\n\n(*include one of the following options*)\n\nto be my attorney\n\n(*or*)\n\njointly to be my attorneys\n\n(*or*)\n\njointly and severally to be my attorneys\n\n(*If appointing alternative attorney(s) include the following*)\n\n**and I appoint** (*insert name of alternative attorney or alternative attorneys if appointing more than one*)\n\nof (*insert address(es) of alternative attorney(s)*)\n\nas alternative attorney for:\n\n(*insert name of attorney in respect of whom alternative attorney is appointed*)\n\n(*If more than one alternative attorney is being appointed insert their names and addresses and the name of the attorney(s) for whom they are being appointed*)\n\nI authorise my attorney(s) to do on my behalf anything that I may lawfully authorise an attorney to do.\n\nI specify that this power of attorney begins:\n\n(*Choose one option only, if no option is chosen the power begins immediately*)\n\n🞏 immediately\n\n🞏 on this date: (*insert date*)\n\n🞏 on this occasion: (*insert occasion*)\n\n**Signed as a deed by:**\n\n═══════════════\n\nEndnotes\n\n1 General information\n\nSee [www.legislation.vic.gov.au](http://www.legislation.vic.gov.au) for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.\n\n*Minister's second reading speech—*\n\nLegislative Assembly: 26 June 2014\n\nLegislative Council: 7 August 2014\n\nThe long title for the Bill for this Act was \"A Bill for an Act to consolidate certain aspects of the law as to powers of attorney and to otherwise provide for powers of attorney, to provide for matters to do with supportive attorneys, to repeal Parts XI and XIA of the **Instruments Act 1958** and Division 5A of Part 4 of the **Guardianship and Administration Act 1986**, to make related amendments to those and other Acts and for other purposes.\"\n\nThe **Powers of Attorney Act 2014** was assented to on 26 August 2014 and came into operation on 1 September 2015: section 2(2).\n\nINTERPRETATION OF LEGISLATION ACT 1984 (ILA)\n\nStyle changes\n\nSection 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.\n\nReferences to ILA s. 39B\n\nSidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression \"(1)\" at the beginning of the original section or clause.\n\nInterpretation\n\nAs from 1 January 2001, amendments to section 36 of the ILA have the following effects:\n\n• Headings\n\nAll headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).\n\n• Examples, diagrams or notes\n\nAll examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).\n\n• Punctuation\n\nAll punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).\n\n• Provision numbers\n\nAll provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).\n\n• Location of \"legislative items\"\n\nA \"legislative item\" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.\n\n• Other material\n\nAny explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.  \nSee section 36(3)(3D)(3E).\n\n2 Table of Amendments\n\nThis publication incorporates amendments made to the **Powers of Attorney Act 2014** by Acts and subordinate instruments.\n\n–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––\n\n**Justice Legislation Amendment Act 2015, No. 20/2015**\n\n| *Assent Date:* | 16.6.15 |\n| *Commencement Date:* | S. 53 on 17.6.15: s. 2(3) |\n\n**Statute Law Revision Act 2015, No. 21/2015**\n\n| *Assent Date:* | 16.6.15 |\n| *Commencement Date:* | S. 3(Sch. 1 item 40) on 1.8.15: s. 2(1) |\n\n**Judicial Entitlements Act 2015, No. 29/2015**\n\n| *Assent Date:* | 11.8.15 |\n| *Commencement Date:* | S. 73 on 12.8.15: s. 2(1) |\n\n**Powers of Attorney Amendment Act 2016, No. 64/2016**\n\n| Assent Date: | 15.11.16 |\n| Commencement Date: | Ss 4–15 on 1.5.17: s. 2(2) |\n\n**Medical Treatment Planning and Decisions Act 2016, No. 69/2016**\n\n| Assent Date: | 29.11.16 |\n| Commencement Date: | Ss 150–152 on 12.3.18: s. 2(2) |\n\n**Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017, No. 41/2017**\n\n| Assent Date: | 19.9.17 |\n| Commencement Date: | Ss 24, 25 on 1.11.17: s. 2(2) |\n\n**Oaths and Affirmations Act 2018, No. 6/2018**\n\n| Assent Date: | 27.2.18 |\n| Commencement Date: | S. 68(Sch. 2 item 97) on 1.3.19: s. 2(2) |\n\n**Guardianship and Administration Act 2019, No. 13/2019**\n\n| Assent Date: | 4.6.19 |\n| Commencement Date: | S. 221(Sch. 1 item 38) on 1.3.20: s. 2(2) |\n\n**Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, No. 11/2021**\n\n| Assent Date: | 23.3.21 |\n| Commencement Date: | Ss 89–104 on 26.4.21: s. 2(2) |\n\n–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––\n\n3 Amendments Not in Operation\n\nThis version does not contain amendments that are not yet in operation.\n\n4 Explanatory details\n\nNo entries at date of publication.","sortOrder":161}],"analysis":{"summary":{"complexity_score":6,"scope_assessment":{"changed":true,"description":"The 2014 Act replaced earlier Victorian powers of attorney legislation and consolidated and expanded the framework, particularly strengthening protections for principals against attorney misconduct and clarifying the rules around enduring powers. This represented a meaningful expansion in scope beyond simply restating existing law."},"complexity_factors":["Multiple distinct types of powers of attorney with different legal rules applying to each","Interaction between financial and personal/medical decision-making frameworks","Strict formal requirements for execution (signing and witnessing) that differ depending on document type","Concept of mental capacity — legally defined and context-dependent — requires careful interpretation","Enduring powers raise complex questions about when they activate and what limits apply","Significant safeguarding provisions and duties imposed on attorneys that carry legal consequences if breached","Interaction with other Victorian laws including the Guardianship and Administration Act and medical treatment legislation","Limited information available in the provided text to fully assess all provisions — only metadata was supplied"],"plain_english_summary":"## Powers of Attorney Act 2014 (Victoria)\n\n**What is this law about?**\n\nThis Victorian law governs **powers of attorney** — legal documents that allow one person (called the \"principal\") to authorise another person (called the \"attorney\") to make decisions and act on their behalf.\n\n**Who does this affect?**\n\n- Anyone who wants to appoint someone to manage their **financial affairs, property, or personal matters** if they become unable to do so themselves\n- People who are already acting as someone else's attorney\n- Elderly Australians planning for future incapacity\n- People with disabilities or serious illness\n- Family members and carers of vulnerable people\n\n**Why does it matter?**\n\nThis law sets the rules for:\n- **How** a power of attorney must be created (signing, witnessing requirements)\n- **What types** of decisions an attorney can make (financial, personal, medical)\n- **Safeguards** to protect people from being exploited by their attorney\n- **When** a power of attorney starts and ends\n- **Enduring powers of attorney** — arrangements that continue to operate even if the principal loses mental capacity (the ability to make their own decisions)\n\n**The practical impact:** If you don't have a valid power of attorney and you lose capacity through illness, injury, or age-related decline, your family may need to go through a formal tribunal process to gain authority to help you — which is costly and stressful. This law provides the framework to avoid that."},"flash_summary":{"complexity_score":8,"scope_assessment":{"changed":true,"description":"The Act as presented incorporates significant amendments and additions that alter scope and procedure from the original consolidated framework set out in section 1. Notable scope changes in the text include: (a) the formal introduction and detailed mechanics of a supportive attorney appointment (Part 7, sections 85–100), which creates a distinct hybrid role focused on supporting the principal rather than making substitute decisions; (b) the introduction of a statutory remote witnessing procedure permitting audiovisual witnessing and electronic signatures when certain certification steps are completed (sections 5A–5D and corresponding execution amendments in sections 11, 33, 36, 37, 46, 49, 95, 98, 99, 100, 105); (c) expanded VCAT powers including specific powers about wills and production of wills (sections 134A–134C) and broadened first-instance and rehearing procedures (Part 8); and (d) repeal and transitional arrangements that move earlier Instruments Act and Guardianship Act provisions into this Act or preserve older instruments under transitional rules (Part 10, sections 140–156 and sections 144–148). These developments change both how and by whom powers may be executed, witnessed and supervised, and introduce new procedural and technological pathways (remote witnessing) alongside substantive new appointment types (supportive attorneys)."},"complexity_factors":["Large number of interlocking Parts and Divisions covering non‑enduring, enduring and supportive appointments with distinct rules (Parts 2–7).","Detailed formal execution and witnessing requirements, including multiple certification statements and special witness roles (sections 33, 36, 46, 49, 95, 98, 5A–5D).","Extensive decision making capacity definitions and context‑sensitive assessment rules (section 4 and section 5).","Significant adjudicative role for VCAT and the Supreme Court with bespoke procedures and powers (Part 8, sections 116–120).","Cross‑references and savings/transitional rules connecting this Act to several other Acts (Instruments Act, Guardianship and Administration Act, Medical Treatment Planning and Decisions Act) (Part 10, sections 140–156 and many definitions in section 3).","Multiple classes of actors with different eligibility rules and exclusions (attorneys, alternative attorneys, trustee companies, supportive attorneys, special witnesses) (sections 28, 31, 91, 5A).","Criminal and civil liability regimes alongside relief powers, compensation orders and officer liability for bodies corporate (sections 74–79, 135–137).","Regulatory discretion to determine technical execution, remote witnessing requirements and fees (section 139), which adds procedural uncertainty."],"plain_english_summary":"### What this law does, simply put\n\n- Mechanically, the Act sets out a full legal framework for powers of attorney in Victoria. It: (a) defines when a person can give another person authority to act for them (an attorney) and what that authority can cover (financial matters, personal matters, or both) (see sections 22–24); (b) sets formal execution and witnessing rules for non-enduring and enduring powers, and for revocations (see sections 11, 33, 46); (c) creates a separate, limited form of appointment called a \"supportive attorney\" whose role is to support the principal to make and give effect to their own decisions (Part 7, especially sections 85–90); (d) defines how to assess decision making capacity and the presumption of capacity (section 4) and requires assessors to choose a suitable time and place for assessment (section 5); (e) prescribes duties, recordkeeping and limits on attorneys and supportive attorneys (Part 6 and Part 7, e.g. sections 63, 66, 70, 90); (f) enables remote witnessing and electronic signatures where the remote witnessing procedure is followed (sections 5A–5D and amendments to execution provisions in sections 11, 33, 36, 37, 46, 49, 95, 98, 99, 100, 105); (g) gives VCAT and the Supreme Court powers to supervise, order relief or compensation, validate transactions, revoke appointments and provide advisory opinions (Part 8, especially sections 116–120, 74, 77); and (h) creates criminal offences and penalties for dishonest obtaining or misuse of enduring powers and supportive appointments (sections 135–137, 136).  \n\n### Who it affects\n\n- Principals (people who make powers or appointments) – they choose attorneys/supportive attorneys, decide commencement conditions and may revoke if they have capacity (see sections 22, 39, 44).  \n- Attorneys and alternative attorneys (financial and personal) – who gain legal authority to act and are subject to duties, recordkeeping and conflict rules (see sections 28–31, 63–69).  \n- Supportive attorneys – a distinct role limited to supporting the principal’s own decisions and, in limited cases, giving effect to those decisions (Part 7).  \n- Third parties dealing with attorneys or supportive attorneys (banks, service providers, purchasers) – they may rely on powers if they act in good faith and without knowledge of invalidity (see sections 15, 75, 114).  \n- Witnesses and special witnesses (including Australian legal practitioners, JPs or prescribed classes) – the Act prescribes who can witness and what certifying statements they must make (see sections 33, 35–36, 95–99 and 5A–5C).  \n- VCAT and the Supreme Court – given broad adjudicative and supervisory roles over disputes, validity, validation of transactions and compensation (Part 8 and sections 74, 77, 116).  \n- Trustee companies, financial services licensees and bodies corporate – they appear in eligibility, proof and liability provisions (see sections 16, 28(2), 137).  \n\n### Why it matters (official purpose and how that maps to trade-offs)\n\n- The Act's stated purposes include consolidating powers-of-attorney law, setting principles for enduring powers, protecting people whose affairs are handled under enduring powers, defining decision making capacity and creating supportive attorney appointments (section 1).  \n\nTesting those purpose-claims against mechanics, incentives and costs drawn from the text:  \n\n- Protection vs. access and transaction cost: the Act increases protective formalities — prescribed forms (sections 32, 94), multiple witnessing and written certifications about capacity (sections 33, 36, 46, 49, 95, 98). These steps are intended to reduce fraud or undue influence (see sections 36, 49, 98 and offences in 135–136) but they raise compliance time and expense for principals and witnesses (forms, arranging qualified witnesses).  \n\n- Facilitation vs. verification risk: the remote witnessing procedure (sections 5A–5D) lowers physical barriers and permits electronic signatures (sections 11(4)–(5), 33(2)–(4), 36(4)–(5) etc.), which reduces transaction costs and may increase use of powers. But the Act still requires a special witness to certify compliance and permits regulations to detail procedure (section 139). That combination shifts some verification burdens onto special witnesses and creates regulatory discretion about technical requirements (section 139).  \n\n- Concentrated benefits vs. diffuse compliance costs: trustee companies are explicitly eligible to act as financial attorneys (section 28(2)) and financial institutions and legal practitioners appear in proof and witnessing provisions (section 16). These entities gain concentrated business opportunities (acting as attorneys, providing certification/witnessing services). The general public faces diffuse costs: arranging authorised witnesses, potential VCAT proceedings if conflicts arise (Part 8), and recordkeeping obligations (section 66).  \n\n- Limits on private-party contracting: the Act grants broad power to attorneys to act on behalf of a principal (section 22) but also restricts certain transactions that change testamentary position or fundamental personal status (section 26). The Act forbids delegation by attorneys (section 25) and requires attorneys not to act where conflicts arise unless authorised (sections 63(d), 64–65). These rules preserve certain private-choice boundaries while allowing broad contractual authority in other areas.  \n\n- Enforcement and deterrence vs. access to remedies: the Act creates heavy criminal penalties for dishonest obtaining or use of powers (section 135; section 136 for supportive appointments) and enables civil compensation orders and relief powers for VCAT/Supreme Court (sections 74, 77, 80). That adds strong deterrence and a route for recovery but also introduces litigation and administrative costs for principals, attorneys and third parties.  \n\n### Who pays, who decides, what behaviour changes (plain facts with section references)\n\n- Who pays: losses caused by an attorney's contravention can be ordered paid by the attorney (section 77). Bodies corporate face potential large fines and officers can be criminally liable for failure to exercise due diligence (section 137). Fees and costs for VCAT processes and audits may be ordered and paid as determined under section 116(1)(f)(ii). Witnesses or special witnesses have certification duties but the Act does not prescribe payment for that work — regulations may set fees (section 139(1)(c)).  \n\n- Who decides: the principal chooses attorneys/supportive attorneys and sets commencement/conditions (sections 22, 39, 101). Attorneys make day-to-day decisions within their powers but must follow statutory duties (section 63) and give effect to principal's wishes where possible (section 21(2)(a)). VCAT and the Supreme Court have supervisory power to make orders, validate transactions, revoke appointments and award compensation (Part 8; sections 116, 74, 77). The Governor in Council may make regulations about remote witnessing and related matters (section 139).  \n\n- Behaviour changes the law encourages or requires: principals must use prescribed forms and witnesses for lasting authorities (sections 32, 33, 94). Attorneys must keep records of transactions (section 66), avoid conflicts (sections 63–65) and may be removed or compelled to compensate if they breach duties (sections 74–79). The remote witnessing rules (sections 5A–5D) enable signings remotely, changing how documents are executed and enabling electronic signatures where procedure is followed (sections 11(4)–(5), 33(3)–(4), etc.). Supportive attorneys must work to enable the principal’s own decision-making (section 90(1)(e)).  \n\n### Implementation risks and practical trade-offs (text‑based)\n\n- Capacity assessments depend on subjective judgments and a contextual support-based approach (section 4). The Act requires witnesses to certify that the principal \"appeared to have decision making capacity\" (sections 36, 49, 98), which embeds some evidential uncertainty that can lead to VCAT disputes (Part 8).  \n\n- The Act centralises dispute resolution in VCAT/Supreme Court (Part 8). That provides remedy and oversight but means delays, legal costs and administrative burden for parties who seek validation or relief (sections 116–120).  \n\n- Remote witnessing reduces physical barriers but also places new compliance and verification duties on special witnesses (section 5A(7)). Regulations can alter requirements and fees (section 139), creating implementation variability over time.  \n\n### Net effect on private enterprise and markets (short, source-based)\n\n- The Act preserves broad private contracting power through enduring powers (section 22) but prevents attorneys from making or revoking wills, voting, consenting to marriage, or handling a deceased principal's estate (section 26).  \n- It enables trustee companies and certain professionals to act as attorneys or certifiers (sections 16, 28(2)) — a defined commercial role — while excluding paid care workers, health providers and accommodation providers from eligibility as attorneys/supportive attorneys (sections 28(1)(d), 91(d)), constraining who businesses can market as agents.  \n- Remote witnessing and electronic signatures (sections 5A–5D and execution amendments) are likely to lower transactional friction and create market opportunities for remote legal and witnessing services, subject to regulatory detail (section 139)."},"kimi_summary":{"_metrics":{"completionTokens":771},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":true,"description":"The legislation has expanded significantly beyond its original 2014 scope. The 2016 amendments added the 'supportive attorney' regime as an entirely new third category of appointment. The 2021 amendments introduced remote witnessing procedures with detailed technical requirements (sections 5A-5D), electronic signatures, and special witness categories. The 2017 amendments added VCAT powers regarding wills (Division 7 of Part 8). What began as consolidation of powers of attorney law has grown to include sophisticated supported decision-making frameworks and pandemic-adapted execution methods."},"complexity_factors":["156 sections across 10 Parts with multiple Divisions","47+ defined terms in section 3 including nested definitions (e.g., 'domestic partner' has 3 sub-paragraphs with cross-references to Relationships Act 2008)","Extensive cross-referencing to other Victorian legislation (Guardianship and Administration Act 2019, Medical Treatment Planning and Decisions Act 2016, etc.)","Multiple conditional execution requirements that vary by document type and whether remote witnessing is used","Four different ways attorneys can be appointed to act (jointly, severally, jointly and severally, by majority) with different rules for each","Three separate revocation regimes depending on whether principal has decision-making capacity","Nested exceptions to general rules (e.g., section 64 conflicts with section 65 exceptions, which themselves have sub-exceptions)","Transitional provisions dealing with three different legacy document types under old legislation","VCAT jurisdiction with first instance and rehearing procedures, plus special will-access powers","Amendment history showing 7 amending Acts with complex transitional provisions"],"plain_english_summary":"This Victorian legislation sets out the rules for **powers of attorney** — legal documents that let someone else make decisions for you. It covers three main types:\n\n**1. Non-enduring powers of attorney**\n- Temporary arrangements that stop working if you lose decision-making capacity\n- Useful for specific tasks (like selling property while you're overseas)\n- Can be revoked (cancelled) at any time\n\n**2. Enduring powers of attorney**\n- Continue even if you lose decision-making capacity (e.g., through dementia or injury)\n- Can cover **financial matters** (money, property, investments) and/or **personal matters** (where you live, who you see, daily care)\n- Must be made while you still have decision-making capacity\n- Requires strict formalities: prescribed form, two witnesses (one must be authorised to witness affidavits or a medical practitioner), and the attorney must formally accept\n- Attorneys have serious duties — they must act honestly, avoid conflicts of interest, keep records, and promote your wellbeing\n\n**3. Supportive attorney appointments** (introduced by this Act)\n- A lighter option where someone helps you make your **own** decisions rather than making them for you\n- They can gather information, communicate your decisions, and help implement them\n- Cannot make significant financial transactions\n- Ends if you lose decision-making capacity\n\n**Key protections:**\n- VCAT (Victorian Civil and Administrative Tribunal) can resolve disputes, review attorney actions, and revoke powers if necessary\n- Criminal offences for dishonestly obtaining or misusing powers of attorney\n- Protection for people who deal with attorneys in good faith\n\n**Remote witnessing:** Since 2021 amendments, documents can be witnessed via audio-visual link, with special rules to prevent fraud.\n\nThe Act also repealed and replaced older laws in the *Instruments Act 1958* and *Guardianship and Administration Act 1986*, creating a clearer, more modern framework."}},"importantCases":[],"_links":{"self":"/api/acts/powers-of-attorney-act-2014","history":"/api/acts/powers-of-attorney-act-2014/history","analysis":"/api/acts/powers-of-attorney-act-2014/analysis","conflicts":"/api/acts/powers-of-attorney-act-2014/conflicts","importantCases":"/api/acts/powers-of-attorney-act-2014/important-cases","documents":"/api/acts/powers-of-attorney-act-2014/documents"}}