New South Wales act

Powers of Attorney Act 2003

In ForceNSW

Jurisdiction

New South Wales

Act Number

53 of 2003

Collection

act

Plain English Summary

7/10 complexity

The Act creates a single statutory scheme for powers of attorney, defining prescribed, enduring and irrevocable instruments, rules for gifts and registrations (including mandatory land registration), and formalities for creation and acceptance. It gives courts and the tribunal broad supervisory powers to review, vary or revoke powers and requires certificates, witnesses and attorney acceptance for enduring authorities.

It affects principals, attorneys, substitute attorneys, conveyancers and third parties — increasing legal certainty but adding upfront formalities, compliance costs and oversight.

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What it does

The Powers of Attorney Act 2003 (NSW) consolidates, modernises and expands the law relating to powers of attorney that was previously housed in Part 16 and Schedule 7 of the Conveyancing Act 1919. At its core the statute performs three functions: (1) it creates statutory shortcuts and presumptions that simplify the creation and proof of different classes of power; (2) it imposes outer boundaries on what an attorney may lawfully do, particularly concerning self-dealing, gifting and benefits to third parties; and (3) it supplies a comprehensive judicial and tribunal oversight regime that can confirm, vary, suspend or revoke powers both before and after the principal loses capacity.

Section 8 provides the mechanism for a prescribed power of attorney. An instrument in or to the effect of the form prescribed by regulation, when duly executed, automatically confers authority to do anything the principal may lawfully authorise an attorney to do (s 9(1)). That authority is nevertheless subject to any conditions or limitations written into the instrument (s 9(2)). Three important statutory limits are carved out: the power does not extend to trustee functions (s 10), does not authorise gifts unless the instrument expressly so provides (s 11(1)), and does not authorise the conferral of benefits on the attorney or on third parties unless expressly authorised (ss 12(1), 13(1)). Schedule 3 supplies “prescribed expressions” that, when inserted, expand the authority in defined and narrow ways—reasonable seasonal or special-occasion gifts to relatives and close friends (cl 1), reasonable living and medical expenses of the attorney (cl 2), or of named third parties (cl 3). These expressions are themselves ambulatory; regulations may replace or amend Schedule 3, but amendments do not retroactively enlarge or shrink existing authorities (s 14A).

Current sections

Direct links to the current provisions in Powers of Attorney Act 2003.

Part 1

Preliminary

Part 1 Preliminary

Name of Act

1 Name of Act

This Act is the Powers of Attorney Act 2003.

Commencement

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

Definitions

3 Definitions

(cf 1919 No 6, ss 7 (1) and 158 (1) and (2))

(1) In this Act—

assurance includes a conveyance and a disposition made otherwise than by will.

attorney, in relation to a power of attorney, means a person to whom the power is given.

bankruptcy means any act or proceeding in law having effects or results similar to those of bankruptcy, and includes the winding up of a company under the Corporations Act 2001 of the Commonwealth.

conveyance includes any assignment, appointment, lease, settlement or other assurance by deed of any property.

dealing has the same meaning as it has in the Real Property Act 1900.

deed, in relation to land under the provisions of the Real Property Act 1900, includes a dealing having the effect of a deed under that Act.

disposition includes—

(a) a conveyance, and

(b) an acknowledgment under section 83 of the Probate and Administration Act 1898, and

(c) a vesting instrument, declaration of trust, disclaimer, release and every other assurance of property by any instrument except a will, and

(d) a release, devise, bequest or an appointment of property contained in a will.

enduring power of attorney—see section 19 (1).

exercise a function includes perform a duty.

function includes a power, authority or duty.

incommunicate—see section 4.

instrument includes a deed.

irrevocable power of attorney—see section 15.

prescribed power of attorney—see section 8.

principal, in relation to a power of attorney, means the person giving the power.

property includes—

(a) real and personal property, and

(b) any estate or interest in any real or personal property, and

(c) any debt, thing in action or other right or interest.

registered means registered as referred to in section 51.

review tribunal—see section 26.

third party, in relation to a power of attorney, means a person other than the principal or an attorney on which a power is conferred by the power of attorney.

vacancy in office of an attorney—see section 5.

valuable consideration includes marriage but does not include a nominal consideration, even if it has some value.

will includes codicil.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2) A power of attorney does not become a different power of attorney if an attorney appointed by the power is lawfully replaced by a different attorney, the exercise of a power conferred by it is lawfully delegated or a sub-attorney is lawfully appointed to exercise a power under it.

(3) A reference in this Act to a suspended power of attorney is a reference to a power of attorney that is—

(a) suspended or restricted in operation by reason of mental incapacity of the principal occurring after the execution of the instrument creating the power, or

(b) suspended by operation of section 50.

(4) Notes included in this Act do not form part of this Act.

Note.

For the purposes of comparison, a number of provisions of this Act contain bracketed notes in headings drawing attention (“cf”) to equivalent or comparable (though not necessarily identical) provisions of other Acts. Abbreviations in the notes include—

1919 No 6: Conveyancing Act 1919 (as in force immediately before the enactment of this Act),

1983 No 179: Protected Estates Act 1983 (as in force immediately before the enactment of this Act).

s 3: Am 2006 No 80, Sch 3.12 [1]; 2009 No 49, Sch 2.46 [1]; 2013 No 23, Sch 1 [1] [2]; 2013 No 95, Sch 5.10 [1]..

When is a person incommunicate?

4 When is a person incommunicate?

(cf 1919 No 6, s 163D)

(1) For the purposes of this Act, a person is incommunicate if—

(a) the person suffers from any physical or mental incapacity (whether of a temporary or permanent nature) that makes the person unable—

(i) to understand communications respecting the person’s property or affairs, or

(ii) to express the person’s intentions respecting the person’s property or affairs, or

(b) the person is unable to receive communications respecting the person’s property or affairs because the person cannot be located or contacted.

(2) Without limiting subsection (1) (a), a person may be incommunicate even if the incapacity concerned is induced by any drug or by medical or other treatment.

Vacancy in office of attorney

5 Vacancy in office of attorney

(cf 1919 No 6, s 163G (3))

For the purposes of this Act, there is a vacancy in the office of an attorney if—

(a) the appointment of the attorney is revoked, or

(b) the attorney renounces the power, or

(c) the attorney dies, or

(d) the attorney becomes bankrupt, or

(e) where the attorney is a corporation, the corporation is dissolved, or

(f) the attorney, by reason of any physical or mental incapacity, ceases to have the capacity to continue to act as an attorney, or

(g) in such other circumstances as may be prescribed by the regulations for the purposes of this paragraph.

Application of Act

6 Application of Act

(1) Act applies to instruments executed on or after commencement This Act applies to any power of attorney created (or purporting to have been created) by an instrument executed on or after the commencement of this section.

(2) Act does not generally apply to existing powers of attorney This Act does not apply to any power of attorney created (or purporting to have been created) by an instrument executed before the commencement of this section, except as provided by subsection (5).

(3) Repealed provisions of Conveyancing Act 1919 continue to apply to existing powers of attorney Subject to subsection (5), the provisions of Part 16 of, and Schedule 7 to, the Conveyancing Act 1919 (and of any regulations made under those provisions) as in force immediately before the commencement of this section continue to apply to any power of attorney created (or purporting to have been created) by an instrument executed before that commencement despite the repeal of those provisions by this Act.

(4) Schedule 1 contains copy of repealed provisions of Conveyancing Act 1919 Schedule 1 contains a copy of the provisions of Part 16 of, and Schedule 7 to, the Conveyancing Act 1919 as in force immediately before the commencement of this section.

Note.

The copy of the provisions of Part 16 of, and Schedule 7 to, the Conveyancing Act 1919 contained in Schedule 1 does not include the definitions for certain terms used in those provisions that are contained in section 7 of the Conveyancing Act 1919. The regulations made under those provisions have also not been included in the Schedule.

(5) Certain provisions of this Act extend to existing powers of attorney The provisions of section 25 (Recognition of enduring powers of attorney made in other States and Territories), Part 5 (Review of powers of attorney) and Division 3 of Part 6 (Registration of powers of attorney) extend to any power of attorney created (or purporting to have been created) by an instrument executed before the commencement of this section.

(6) Certain references in Part 5 extended to existing powers of attorney For the purposes of subsection (5)—

(a) a reference in Part 5 to an enduring power of attorney is taken to include a reference to a power of attorney that was a protected power of attorney under Part 16 of the Conveyancing Act 1919 immediately before its repeal, and

(b) a reference in Part 5 to an irrevocable power of attorney is taken to include a reference to a power of attorney to which section 160 of the Conveyancing Act 1919 applied immediately before its repeal.

(7) Subsection (5) does not affect current proceedings Nothing in subsection (5) affects the continued operation of the provisions of the Conveyancing Act 1919 and regulations made under that Act (as continued in force by subsection (3)) in relation to any proceedings commenced, but not finally determined, under those provisions before the commencement of this section.

Application of general law to powers of attorney

7 Application of general law to powers of attorney

(1) This Act does not affect the operation of any principle or rule of the common law or equity in relation to powers of attorney except to the extent that this Act provides otherwise, whether expressly or by necessary intention.

(2) This Act does not affect the operation of Part 3 of the Conveyancing Act 1919 except to the extent that this Act provides otherwise, whether expressly or by necessary intention.

Note.

Part 3 of the Conveyancing Act 1919 contains general provisions relating to the execution and effect of deeds.

Part 2

Prescribed powers of attorney

Part 2 Prescribed powers of attorney

Creation of prescribed power of attorney

8 Creation of prescribed power of attorney

An instrument (whether or not under seal) that is in or to the effect of a form prescribed by the regulations for the purposes of this section and is duly executed creates a prescribed power of attorney for the purposes of this Act.

s 8: Subst 2013 No 23, Sch 1 [3].

Powers conferred by prescribed power of attorney

9 Powers conferred by prescribed power of attorney

(cf 1919 No 6, s 163B (1) and (3))

(1) Subject to this Act, a prescribed power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do.

(2) A prescribed power of attorney has effect subject to compliance with any conditions or limitations specified in the instrument creating the power.

Prescribed power of attorney does not confer authority to act as trustee

10 Prescribed power of attorney does not confer authority to act as trustee

(cf 1919 No 6, s 163B (2) (a))

A prescribed power of attorney does not confer authority to exercise any function as a trustee that is conferred or imposed on the principal.

Prescribed power of attorney does not generally confer authority to give gifts

11 Prescribed power of attorney does not generally confer authority to give gifts

(1) A prescribed power of attorney does not authorise an attorney to give a gift of all or any property of the principal to any other person unless the instrument creating the power expressly authorises the giving of the gift.

Note.

This subsection restates a rule of the general law. Accordingly, whether a gift of all or any of the property of a principal is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney.

(2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to give the kinds of gifts that are specified by that Schedule for that expression.

Prescribed power of attorney does not generally confer authority to confer benefits on attorneys

12 Prescribed power of attorney does not generally confer authority to confer benefits on attorneys

(cf 1919 No 6, s 163B (2) (b))

(1) A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the attorney unless the instrument creating the power expressly authorises the conferral of the benefit.

Note.

This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on an attorney is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney.

(2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to confer on the attorney the kinds of benefits that are specified by that Schedule for that expression.

Prescribed power of attorney does not generally confer authority to confer benefits on third parties

13 Prescribed power of attorney does not generally confer authority to confer benefits on third parties

(1) A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on a third party unless the instrument creating the power expressly authorises the conferral of the benefit.

Note.

This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on a third party is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney.

(2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to confer on a third party the kinds of benefits that are specified by that Schedule for that expression.

Regulations may amend Schedule 3

14 Regulations may amend Schedule 3

(1) The regulations may replace or amend Schedule 3.

(2) (Repealed)

s 14: Am 2013 No 23, Sch 1 [4] [5].

14A

Effect of amendment of prescribed form or Schedule 3

14A Effect of amendment of prescribed form or Schedule 3

The amendment or repeal of a form prescribed under section 8, or a provision of Schedule 3 that prescribes an expression or specifies a kind of gift or benefit for the purposes of section 11 (2), 12 (2) or 13 (2), does not—

(a) confer any additional authority on an attorney under a power of attorney that was a prescribed power of attorney in force immediately before the day on which the amendment or repeal takes effect (an existing authority), or

(b) remove any authority conferred on a principal by an existing authority, or

(c) otherwise affect the continued operation of an existing authority.

s 14A: Ins 2013 No 23, Sch 1 [6].

Part 3

Irrevocable powers of attorney

Part 3 Irrevocable powers of attorney

Irrevocable powers of attorney

15 Irrevocable powers of attorney

(cf 1919 No 6, s 160 (1))

An instrument that creates a power of attorney creates an irrevocable power of attorney for the purposes of this Act if—

(a) the instrument is expressed to be irrevocable, and

(b) the instrument is given for valuable consideration or is expressed to be given for valuable consideration.

Effect of irrevocable powers of attorney

16 Effect of irrevocable powers of attorney

(cf 1919 No 6, s 160 (1))

(1) The power conferred by an irrevocable power of attorney is not revoked or otherwise terminated by, and remains effective despite, the occurrence of any of the following—

(a) anything done by the principal without the concurrence of the attorney,

(b) the bankruptcy of the principal,

(c) the mental incapacity of the principal,

(d) the principal becoming a mentally incapacitated person,

(d1) the principal becoming a person who is a managed missing person within the meaning of the NSW Trustee and Guardian Act 2009,

(e) the death of the principal,

(f) if the principal is a corporation, the dissolution of the corporation.

(2) Subsection (1) has effect except to the extent that the instrument creating the irrevocable power of attorney provides otherwise.

Note.

Division 2 of Part 5 enables the Supreme Court to order the termination of an irrevocable power of attorney in certain circumstances.

s 16: Am 2004 No 86, Sch 2.1; 2009 No 49, Sch 2.46 [2].

Part 4

Incapacity and enduring powers of attorney

Part 4 Incapacity and enduring powers of attorney

Division 1

Initial and supervening mental incapacity

Division 1 Initial and supervening mental incapacity

Initial mental incapacity

17 Initial mental incapacity

(cf 1919 No 6, s 163E (1) and (2))

(1) Subject to this Act, a power of attorney is not ineffective only because any act within the scope of the power is of such a nature that it was beyond the understanding of the principal through mental incapacity at the time the power is given.

(2) However, a power of attorney does not authorise an attorney to do any such act unless it is authorised by or under this Act.

Note.

Division 3 of Part 5 contains provisions that enable the Supreme Court to confirm the operation of a power of attorney despite the mental incapacity of the principal at the time the power is given.

Supervening mental incapacity does not affect validity of acts principal understands

18 Supervening mental incapacity does not affect validity of acts principal understands

(cf 1919 No 6, s 163F (1))

A power of attorney is effective to the extent that it concerns any act within its scope that is of such a nature that is not beyond the understanding of the principal through mental incapacity at the time of the act.

Note.

Division 2 makes provision for enduring powers of attorney, which can have effect in relation to acts that are beyond the understanding of the principal through mental incapacity at the time of the act.

Division 2

Enduring powers of attorney

Division 2 Enduring powers of attorney

Creation of enduring power of attorney

19 Creation of enduring power of attorney

(cf 1919 No 6, s 163F (2))

(1) An instrument that creates a power of attorney creates an enduring power of attorney for the purposes of this Act if—

(a) the instrument is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument, and

(b) execution of the instrument by the principal is witnessed by a person who is a prescribed witness (not being an attorney under the power), and

(c) there is endorsed on, or annexed to, the instrument a certificate by that person stating that—

(i) the person explained the effect of the instrument to the principal before it was signed, and

(ii) the principal appeared to understand the effect of the power of attorney, and

(iii) the person is a prescribed witness, and

(iv) the person is not an attorney under the power of attorney, and

(v) the person witnessed the signing of the power of attorney by the principal.

(2) In this section—

prescribed witness means—

(a) a registrar of the Local Court, or

(b) an Australian legal practitioner, or

(c) a licensee under the Conveyancers Licensing Act 2003, or an employee of the NSW Trustee and Guardian or a trustee company within the meaning of the Trustee Companies Act 1964, who has successfully completed a course of study approved by the Minister, by order published in the Gazette, for the purposes of this paragraph, or

(d) a legal practitioner duly qualified in a country other than Australia, instructed and employed independently of any legal practitioner appointed as an attorney under the instrument, or

(e) any other person (or person belonging to a class of persons) prescribed by the regulations for the purposes of this paragraph.

s 19: Am 2007 No 94, Sch 2; 2009 No 49, Sch 2.46 [3]; 2009 No 56, Sch 2.46; 2017 No 63, Sch 4.35.

Enduring power of attorney does not confer authority until attorney accepts appointment

20 Enduring power of attorney does not confer authority until attorney accepts appointment

(1) An enduring power of attorney does not operate to confer any authority on an attorney until the attorney has accepted the appointment by signing the instrument creating the power.

(2) If more than one attorney is appointed by an enduring power of attorney, the power of attorney operates to confer authority only in relation to such of the attorneys who accept their appointments as provided by subsection (1).

(3) An attorney may accept the appointment at the time the instrument creating the enduring power of attorney is executed or at any time after it is executed.

(4) To avoid doubt, this section extends to substitute attorneys.

s 20: Am 2013 No 23, Sch 1 [7].

Effect of enduring power of attorney

21 Effect of enduring power of attorney

(cf 1919 No 6, s 163F (2), (3) and (4))

(1) Subject to this Act, an act done by an attorney that is within the scope of the power conferred by an enduring power of attorney and that is of such a nature that it is beyond the understanding of the principal through mental incapacity at the time of the act is as effective as it would have been had the principal understood the nature of the act at that time.

(2) This section does not save a power of attorney from being or becoming ineffective by reason of any matter other than mental incapacity of the principal arising after the execution of the instrument creating the power.

(3) This section applies only if and to the extent that a contrary intention is not expressed in the instrument creating the power and has effect subject to the terms of the instrument creating the power.

Effect of ademptions of testamentary gifts by attorney under enduring power of attorney

22 Effect of ademptions of testamentary gifts by attorney under enduring power of attorney

(cf 1983 No 179, s 48)

(1) Any person who is named as a beneficiary (a named beneficiary) under the will of a deceased principal who executed an enduring power of attorney has the same interest in any surplus money or other property arising from any sale, mortgage, charge or disposition of any property or other dealing with property by the attorney under the power of attorney as the named beneficiary would have had in the property the subject of the sale, mortgage, charge, disposition or dealing, if no sale, mortgage, charge, disposition or dealing had been made.

(2) The surplus money or other property arising as referred to in subsection (1) is taken to be of the same nature as the property sold, mortgaged, charged, disposed of or dealt with.

(3) Except as provided by subsection (4), money received for equality of partition and exchange, and all fines, premiums and sums of money received on the grant or renewal of a lease where the property the subject of the partition, exchange, or lease was real estate of a deceased principal are to be considered as real estate.

(4) Fines, premiums and sums of money received on the grant or renewal of leases of property of which the deceased principal was tenant for life are to be considered as the personal estate of the deceased principal.

(5) This section has effect subject to any order of the Supreme Court made under section 23.

(6) A person is named as a beneficiary under a will for the purposes of this section if—

(a) the person is referred to by name in the will as being a beneficiary, or

(b) the person answers a description of a beneficiary, or belongs to a class of persons specified as beneficiaries, under the will.

(7) This section does not apply to any person to whom section 83 of the NSW Trustee and Guardian Act 2009 applies.

s 22: Am 2009 No 49, Sch 2.46 [4].

Supreme Court may make orders confirming or varying operation of section 22

23 Supreme Court may make orders confirming or varying operation of section 22

(1) On the application of a named beneficiary referred to in section 22 (1) or such other person as the Supreme Court considers has a proper interest in the matter, the Supreme Court may—

(a) make such orders and direct such conveyances, deeds and things to be executed and done as it thinks fit in order to give effect to section 22, or

(b) if it considers that the operation of section 22 (1) and (2) would result in one or more named beneficiaries gaining an unjust and disproportionate advantage, or suffering an unjust and disproportionate disadvantage, of the kind not contemplated by the will of the deceased principal—make such other orders as the Court thinks fit to ensure that no named beneficiary gains such an advantage or suffers such a disadvantage.

(2) An order made by the Supreme Court under subsection (1) (b)—

(a) may provide that it has effect as if it had been made by a codicil to the will of the deceased principal executed immediately before his or her death, and

(b) has effect despite anything to the contrary in section 22.

(3) An application under subsection (1) must be made within 6 months from the date of the grant or resealing in this State of probate of the will or letters of administration unless the Supreme Court, after hearing such of the persons affected as the Supreme Court thinks necessary, extends the time for making the application.

(4) An extension of time granted under subsection (3) may be granted—

(a) on such conditions as the Supreme Court thinks fit, and

(b) whether or not the time for making an application under this section has expired.

24

24 (Repealed)

Recognition of enduring powers of attorney made in other States and Territories

25 Recognition of enduring powers of attorney made in other States and Territories

(1) An interstate enduring power of attorney has effect in this State as if it were an enduring power of attorney made under, and in compliance with, this Act, but only to the extent that the powers it gives under the law of the State or Territory in which it was made could validly have been given by an enduring power of attorney made under this Act.

(2) In particular, an interstate enduring power of attorney to which subsection (1) applies—

(a) has effect in this State subject to any limitations on the power that apply to it under the law of the State or Territory in which it was made, and

(b) does not operate to confer any power on an attorney in this State that cannot be conferred on an attorney under an enduring power of attorney made in this State.

(3) Subsection (1) does not apply to any power of attorney (or class of powers of attorney) prescribed by the regulations.

(4) A document signed by an Australian legal practitioner that certifies that an interstate enduring power of attorney was made in accordance with the formal requirements of the law of the State or Territory in which it was made is admissible in any proceedings concerning that power and is prima facie evidence of the matter so certified.

(5) In this section—

interstate enduring power of attorney—

(a) means a power of attorney made by instrument in another State or Territory that, under the law of the State or Territory, has effect in the State or Territory as a valid power of attorney even if the principal loses capacity through mental incapacity after the execution of the instrument, and

(b) includes an instrument in the nature of an enduring power of attorney, however described.

s 25: Am 2015 No 7, Sch 2.34 [1] [2]; 2025 No 13, Sch 6.

Part 5

Review of powers of attorney

Part 5 Review of powers of attorney

Review tribunals

26 Review tribunals

Each of the following is a review tribunal for the purposes of this Part—

(a) the Civil and Administrative Tribunal,

(b) the Supreme Court.

s 26: Am 2013 No 95, Sch 5.10 [2].

Concurrent jurisdiction of review tribunals

27 Concurrent jurisdiction of review tribunals

(1) If a provision of this Part confers a function on any review tribunal, the jurisdiction to exercise that function is conferred on each review tribunal concurrently.

(2) A person cannot make an application to a review tribunal for the exercise of a function conferred on the tribunal by this Part if the person has already applied to another review tribunal for the exercise of the same function in respect of the same (or substantially the same) matter.

(3) However, subsection (2) does not prevent a person from making an application to a review tribunal for the exercise of a function under this Part if the earlier application for the exercise of the same function has been withdrawn with the approval of the review tribunal in which the application was made.

(4) Subsections (1)–(3) do not apply to a provision of this Part that confers a function on the Civil and Administrative Tribunal or the Supreme Court expressly.

s 27: Am 2013 No 95, Sch 5.10 [3].

Supreme Court may order the termination of irrevocable power of attorney

28 Supreme Court may order the termination of irrevocable power of attorney

(cf 1919 No 6, s 160 (2))

The Supreme Court may order that an irrevocable power of attorney is terminated and may order that the instrument creating the power be delivered up for cancellation if the Court considers that—

(a) the objects of the power of attorney have been carried out, or

(b) the objects of the power of attorney have become incapable of being carried out, or

(c) the power of attorney is otherwise exhausted.

Division 3

Confirmation of powers conferred when principal mentally incapacitated

Division 3 Confirmation of powers conferred when principal mentally incapacitated

Supreme Court may make orders confirming powers understood by principal

29 Supreme Court may make orders confirming powers understood by principal

(cf 1919 No 6, s 163E (3))

The Supreme Court may, on the application of a principal under a power of attorney, confirm (whether in whole or in part) any power to do an act under the power of attorney if it appears to the Court that the nature of the act was not beyond the understanding of the principal through mental incapacity at the time when the power was given.

Supreme Court may make orders confirming powers subsequently affirmed by principal

30 Supreme Court may make orders confirming powers subsequently affirmed by principal

(cf 1919 No 6, s 163E (4))

The Supreme Court may, on the application of a principal under a power of attorney, confirm (whether in whole or in part) any power to do an act under the power of attorney that was beyond the understanding of the principal through mental incapacity at the time the power was given to the extent that it appears to the Court that—

(a) the principal has affirmed the power before or during the proceedings on the application, and

(b) the principal had sufficient mental capacity to affirm the power at the time the affirmation was made.

Supreme Court may make orders confirming powers in best interests of principal

31 Supreme Court may make orders confirming powers in best interests of principal

(cf 1919 No 6, s 163E (5) and (7))

(1) The Supreme Court may, on the application of a principal under a power of attorney (whether or not an enduring power of attorney), confirm (whether in whole or in part) any power to do an act under the power of attorney if it appears to the Court that—

(a) the principal is incapable of affirming the power because—

(i) the principal lacks capacity by reason of the continuation of mental incapacity that affected the principal when the principal gave the power, or

(ii) the principal is incommunicate, and

(b) it is for the benefit of the principal that the power be confirmed in whole or in part.

(2) Subsection (1)—

(a) applies only if and to the extent that a contrary intention is not expressed in the instrument creating the power of attorney, and

(b) has effect subject to the terms of the instrument creating the power of attorney.

Effect of orders made by Supreme Court under this Division

32 Effect of orders made by Supreme Court under this Division

(cf 1919 No 6, s 163E (6))

If the Supreme Court makes an order under this Division confirming a power of an attorney (whether in whole or in part), any act done by the attorney after the order takes effect that is within the scope of the power is, to the extent it is confirmed, taken to be as good for all purposes and between all persons as if, at the time when the order took effect, the principal were of full capacity and had in due form confirmed the power of attorney to the extent of the order of confirmation.

Division 4

Review of enduring powers of attorney and other powers

Division 4 Review of enduring powers of attorney and other powers

Reviewable powers of attorney

33 Reviewable powers of attorney

(cf 1919 No 6, s 163G (1))

(1) A power of attorney is a reviewable power of attorney for the purposes of an application under this Division if the review tribunal to which the application is to be made has jurisdiction to deal with the application as provided by this section.

(2) Both the Civil and Administrative Tribunal and the Supreme Court have jurisdiction to deal with an application under this Division in respect of an enduring power of attorney (including a revocation of an enduring power of attorney).

(3) The Supreme Court (but not the Civil and Administrative Tribunal) also has jurisdiction to deal with an application under this Division in respect of any other power of attorney given by a principal who is incommunicate for the time being.

(4) To remove any doubt, references in this Division to a reviewable power of attorney extend to a document purporting to be a reviewable power of attorney and to the making or revocation of a power of attorney extend to the purported making or revocation of a power of attorney.

s 33: Am 2013 No 23, Sch 1 [8] [9]; 2013 No 95, Sch 5.10 [4].

Referral of application to different review tribunal

34 Referral of application to different review tribunal

(1) Whether or not on its own initiative, the Supreme Court may refer an application made to it under this Division in respect of an enduring power of attorney or a revocation of an enduring power of attorney to the Civil and Administrative Tribunal and the Civil and Administrative Tribunal may refer such an application made to it to the Supreme Court.

(2) Without limiting the matters that a review tribunal may take into account in deciding whether or not to refer such an application, the review tribunal may take into account any one or more of the following matters—

(a) whether the application relates to the effect of the enduring power of attorney or revocation of enduring power of attorney on third parties,

(b) whether the application is likely to raise for consideration complex or novel legal issues that the Supreme Court is better suited to determine,

(c) any other matter it considers relevant.

s 34: Am 2013 No 23, Sch 1 [10] [11]; 2013 No 95, Sch 5.10 [5].

Who are interested persons and parties in relation to applications

35 Who are interested persons and parties in relation to applications

(1) Interested persons who may make applications Each of the following persons is an interested person in relation to the making of applications under this Division in respect of a reviewable power of attorney—

(a) an attorney (including an attorney whose appointment has been purportedly revoked),

(b) the principal,

(c) any person who is—

(i) a guardian of the principal (whether under the Guardianship Act 1987 or any other Act or law), or

(ii) an enduring guardian of the principal under the Guardianship Act 1987,

(d) any other person who, in the opinion of the review tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal.

(2) Parties to proceedings in respect of an application Each of the following persons is a party to an application in respect of a reviewable power of attorney—

(a) the applicant,

(b) each attorney under the power (if the attorney is not the applicant),

(c) the principal (if the principal is not the applicant),

(c1) the NSW Trustee and Guardian,

(d) any other person that the review tribunal concerned has joined as a party under subsection (3).

(3) Joinder of parties A review tribunal may, on its own initiative or on the application of an interested person, decide to join, as a party to any proceedings before the tribunal under this Division, any person who, in the opinion of the tribunal, should be a party to the proceedings (whether because of the person’s concern for the welfare of the principal or for any other reason).

(4) (Repealed)

(5) Applicant to be notified of joinder If a review tribunal joins a person as a party to any proceedings, the tribunal must, as soon as practicable, notify the applicant (or cause the applicant to be notified) accordingly.

s 35: Am 2007 No 12, sec 4; 2013 No 23, Sch 1 [12]; 2018 No 29, Sch 1.19.

Interested persons may apply for review

36 Interested persons may apply for review

(cf 1919 No 6, s 163G)

(1) Tribunal may review making or operation and effect of power A review tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of a reviewable power of attorney or not to carry out such a review.

(2) As a consequence of reviewing the making, revocation or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section.

(3) Orders relating to making of power of attorney A review tribunal may make either or both of the following orders with respect to the making of a power of attorney—

(a) an order declaring that the principal did or did not have mental capacity to make a valid power of attorney,

(b) an order declaring that the power of attorney is invalid (either in whole or in part) if the tribunal is satisfied—

(i) the principal did not have the capacity necessary to make it, or

(ii) the power of attorney did not comply with the other requirements of this Act applicable to it, or

(iii) the power of attorney is invalid for any other reason, for example, the principal was induced to make it by dishonesty or undue influence.

(3A) Orders relating to revocation of power of attorney A review tribunal may make either or both of the following orders with respect to the revocation of a power of attorney—

(a) an order declaring that the principal did or did not have mental capacity to revoke a power of attorney,

(b) an order declaring that the power of attorney remains valid (either in whole or in part) if the tribunal is satisfied—

(i) the principal did not have the capacity necessary to revoke it, or

(ii) the revocation is invalid for any other reason, for example, the principal was induced to make the revocation by dishonesty or undue influence.

(4) Orders relating to operation and effect of power A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney—

(a) an order varying a term of, or a power conferred by, the power of attorney,

(b) an order removing a person from office as an attorney,

(c) an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office,

(d) an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated office,

(e) an order directing or requiring any one or more of the following—

(i) that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal,

(ii) that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power,

(iii) that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal,

(iv) that the attorney submit a plan of financial management to the tribunal for approval,

(f) an order revoking all or part of the power of attorney,

(g) such other orders as the review tribunal thinks fit.

(5) Orders relating to mental capacity of principal A review tribunal may make an order relating to the operation and effect of a power of attorney declaring that the principal lacked or lacks capacity because of mental incapacity at a specified time or during a specified period or for the time being. An enduring power of attorney can not be lawfully revoked by the principal while the principal is declared to be incapable by such an order.

(6) Effect of order declaring mental incapacity for the time being If a review tribunal makes an order under this section declaring that a principal under a reviewable power of attorney lacks capacity through mental incapacity for the time being, the principal is to be taken, for the purposes of the operation of the power of attorney, to lack such capacity for such period (if any) specified in the order or until further order of the tribunal.

(7) Orders may be subject to terms and conditions An order made under this section may be made subject to such terms and conditions as the review tribunal thinks fit.

(8) Further orders relating to accounts and information If a review tribunal makes an order under this section directing an attorney to furnish accounts or other information, the tribunal may decide to make further orders for—

(a) limiting the disclosure of accounts or other information by the attorney, and

(b) inquiry and report on the conduct of the attorney.

(9) Order reinstating lapsed power of attorney may have retrospective operation If a review tribunal makes an order under this section reinstating a power of attorney that has lapsed by reason of a vacancy in the office of an attorney, the order may also direct that it has effect from the time at which the power of attorney originally lapsed.

(10) Effect of order removing or appointing attorney or altering power The removal or appointment of an attorney, or the alteration or revocation of a power of attorney, under this section has effect as if—

(a) it were done in due form by the principal, and

(b) the principal were of full capacity and were, to the extent necessary, authorised to do the thing in question by the instrument creating the power.

(11) Review tribunal may exercise functions despite instrument A review tribunal may exercise a function under this section despite anything to the contrary in the instrument creating the power.

(12) Section does not affect irrevocable powers of attorney This section has effect subject to the provisions of Part 3 (Irrevocable powers of attorney).

s 36: Am 2013 No 23, Sch 1 [13] [14].

Review tribunal may treat certain applications for review of power of attorney as application for management order

37 Review tribunal may treat certain applications for review of power of attorney as application for management order

(1) If, on a review of the making, revocation or operation and effect of a reviewable power of attorney under section 36, the Civil and Administrative Tribunal decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Part 3A (Financial management) of the Guardianship Act 1987.

(2) If such a decision is made, the application is taken to be an application for such a financial management order duly made in respect of the principal under that power.

(3) If, on a review of the making, revocation or operation and effect of a reviewable power of attorney under section 36, the Supreme Court decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) proceed instead as if an application for a declaration and order under section 41 of the NSW Trustee and Guardian Act 2009 had been duly made in respect of the principal under that power.

s 37: Am 2009 No 49, Sch 2.46 [5]; 2013 No 23, Sch 1 [13]; 2013 No 95, Sch 5.10 [6].

Advice or directions concerning reviewable powers of attorney

38 Advice or directions concerning reviewable powers of attorney

(1) An attorney under a reviewable power of attorney may apply for advice or direction by a review tribunal on any matter relating to the scope of the attorney’s appointment or the exercise of any function by the attorney under a reviewable power of attorney.

(2) In determining any such application, a review tribunal may decide to—

(a) approve or disapprove of any act proposed to be done by the attorney, or

(b) give such advice or direction as it considers appropriate, or

(c) vary the effect of the enduring power of attorney or make any other order it could make in an application under section 36.

(3) No proceedings lie against an attorney under a reviewable power of attorney for or on account of any act, matter or thing done or omitted to be done by the attorney in good faith and in accordance with any approval, advice or direction given under this section.

Division 5

Divisions 5

39–41 (Repealed)

pt 5, div 5 (s 39): Rep 2013 No 95, Sch 5.10 [7].

pt 5, div 6 (ss 40, 41): Rep 2013 No 95, Sch 5.10 [8].

Division 7

Procedure in relation to incommunicate principals

Division 7 Procedure in relation to incommunicate principals

Procedure where principal incommunicate

42 Procedure where principal incommunicate

(cf 1919 No 6, s 163H)

(1) If the principal under a power of attorney is incommunicate—

(a) proceedings under this Part by the principal—

(i) may be commenced and carried on as prescribed by rules of court, or

(ii) subject to rules of court, may be commenced and carried on as if the principal were mentally incapacitated, and

(b) subject to rules of court, all persons are, in relation to the proceedings, to be as nearly as may be in the like position in law as if the principal were mentally incapacitated.

(2) Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act 1970.

(3) A reference to rules of court in subsection (1) includes a reference to the procedural rules of the Civil and Administrative Tribunal (within the meaning of the Civil and Administrative Tribunal Act 2013) in relation to proceedings in that Tribunal brought under this Part.

s 42: Am 2013 No 95, Sch 5.10 [9].

Part 6

Powers of attorney generally

Part 6 Powers of attorney generally

Attorney may execute instruments and do other things in own name

43 Attorney may execute instruments and do other things in own name

(cf 1919 No 6, s 159)

(1) An attorney under a power of attorney may, in the exercise of the power—

(a) execute any assurance or instrument with the attorney’s own signature and, where sealing is required, with the attorney’s own seal, or

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

(2) An assurance or instrument executed, or thing done, in accordance with subsection (1) is as effectual in law as if executed or done by the attorney with the signature and seal or, as the case may be, in the name, of the principal.

Proof of powers of attorney

44 Proof of powers of attorney

(cf 1919 No 6, s 163A)

(1) A document is a certified copy of an instrument for the purposes of this section if—

(a) there is endorsed on the document a written certificate, to the effect that the document is a true and complete copy of the contents of the instrument of which it purports to be a copy, by—

(i) the principal under the power of attorney created by the instrument, or

(ii) a person (or person belonging to a class of persons) prescribed by the regulations for the purposes of this subsection, and

(b) each page of the document bears the signature of the person who gives the certificate referred to in paragraph (a).

(2) A legible document that is a certified copy of an instrument creating a power of attorney is evidence—

(a) as against the principal under the power of attorney of the execution and contents of the instrument, and

(b) as against any other person of the contents of the instrument.

(3) Subsection (2) does not make a document better evidence than is the instrument of the contents of which it purports to be a copy.

(4) This section does not affect any other method of proving the execution or contents of an instrument creating a power of attorney.

(5) A person must not give a certificate for the purposes of this section knowing the certificate to be false.

Maximum penalty (subsection (5)): 5 years imprisonment.

Delegation of power of attorney

45 Delegation of power of attorney

(cf 1919 No 6, s 158 (3))

(1) An attorney under a power of attorney cannot appoint a substitute, delegate or sub-attorney unless the instrument creating the power expressly provides for the attorney to do so.

(2) Nothing in this section enables an attorney irrevocably to appoint a substitute, delegate or sub-attorney unless the instrument creating the power of attorney expressly provides for the attorney to do so.

45A

Appointment of substitute attorneys

45A Appointment of substitute attorneys

(1) A principal may appoint a person as a substitute attorney for a specified person who is appointed by the principal as an attorney (the specified attorney).

(2) The appointment of a substitute attorney may be made by expressly including the appointment in the instrument creating the power of attorney.

(3) The principal may appoint one or more substitute attorneys.

(4) A substitute attorney may act as attorney under the power of attorney during a vacancy in the office of the specified attorney or a vacancy of a kind specified in the instrument creating the power of attorney.

s 45A: Ins 2013 No 23, Sch 1 [15].

Effect of vacation of office of joint and several attorneys

46 Effect of vacation of office of joint and several attorneys

(1) If a power of attorney appoints 2 or more persons as joint attorneys, the power of attorney is terminated if the office of one or more of the attorneys becomes vacant.

(1A) However, such a power of attorney is not terminated if—

(a) the power of attorney provides otherwise, and

(b) at least one of the attorneys or a substitute attorney remains in office.

(2) If a power of attorney appoints 2 or more persons as attorneys either severally or jointly and severally, a vacancy in the office of one or more attorneys does not operate to terminate the power of attorney in relation to the other attorneys.

s 46: Am 2013 No 23, Sch 1 [16].

Attorney entitled to rely on power of attorney if unaware of termination or suspension of power

47 Attorney entitled to rely on power of attorney if unaware of termination or suspension of power

(cf 1919 No 6, s 161)

If a power of attorney is terminated or suspended, an attorney who does an act that would have been within the scope of the power without knowing of the termination or suspension is entitled to rely on the power of attorney in relation to that act in the same manner and to the same extent as if the power had not been terminated or suspended.

Certain third parties entitled to rely on acts done under terminated or suspended powers of attorney

48 Certain third parties entitled to rely on acts done under terminated or suspended powers of attorney

(cf 1919 No 6, s 162)

(1) If a power of attorney is terminated or suspended, a third party who deals or otherwise transacts in good faith with the attorney without knowing of the termination or suspension is entitled to rely on the power of attorney in relation to that dealing or transaction in the same manner and to the same extent as if the power had not been terminated or suspended.

(2) Subsection (1) does not entitle an attorney to rely on a power in support of an act within the scope of the power done by the attorney with notice of the termination or suspension of the power to the extent that it concerns authority to do that act.

Attorney acting with knowledge of termination or suspension of power

49 Attorney acting with knowledge of termination or suspension of power

(cf 1919 No 6, s 162A)

(1) An attorney under a power of attorney that is terminated must not do any act or thing under the power of attorney if the attorney knows of the termination at the time the attorney does the act or thing.

Maximum penalty—5 years imprisonment.

(2) An attorney under a power of attorney must not do any act or thing under the power of attorney where the authority to do that act or thing has been suspended if the attorney knows of the suspension at the time the attorney does the act or thing.

Maximum penalty—5 years imprisonment.

Effect of management of estate

50 Effect of management of estate

(1) A power of attorney is not terminated by the estate of the principal becoming subject to management under the NSW Trustee and Guardian Act 2009 (a managed estate).

(2) Subsection (1) has effect subject to the terms of the instrument creating the power.

(3) A power of attorney is suspended while the estate of the principal is a managed estate.

(4) Despite subsection (3), if the Civil and Administrative Tribunal, in making a financial management order under section 25E of the Guardianship Act 1987 in relation to a principal, excludes a specified part of the principal’s estate from the order, the Civil and Administrative Tribunal may order that the power of attorney is to remain in force in respect of so much of the estate as is excluded from the financial management order concerned.

(5) The Civil and Administrative Tribunal may make a similar order in respect of so much of the estate of the principal as is not managed estate, but only if the estate is a managed estate because of a financial management order made by the Civil and Administrative Tribunal.

(6) Despite subsection (3), where an attorney under a power of attorney does an act within the scope of the power while the estate of the principal is a managed estate, the act of the attorney has no less validity and effect than the act of the attorney would have had if this section had not been enacted, but this subsection does not affect the operation of subsection (9).

(7) While a power of attorney is suspended by this section, the Supreme Court may restore the power of attorney to operation to such extent, and on such terms and conditions, as the Supreme Court thinks fit.

(8) The Supreme Court may restore a power of attorney to operation under subsection (7) as from any time whether before or after the order of restoration is made or takes effect.

(9) If the estate of a principal is a managed estate, the Supreme Court may—

(a) terminate the power of attorney, or

(b) order that the power of attorney be subject to such conditions as the Court thinks fit.

(10) An attorney under a power of attorney and persons dealing with the attorney and all other persons have the like protections against any term or condition of any restoration of the power and against any condition or restriction to which the power is subject under this section as if the term, condition or restriction were effected by act of the principal.

(11) The estate of a person whose estate is subject to management under Division 2 of Part 4.3 of the NSW Trustee and Guardian Act 2009 is taken to be a managed estate for the purposes of this section for the life of the person or until the Supreme Court declares that the exercise of the powers of the NSW Trustee and Guardian in relation to the estate is not required. An application to the Court for a declaration may be made by the NSW Trustee and Guardian, the person whose power of attorney is in question or an attorney under the power of attorney.

(12) A declaration for the purposes of subsection (11) has no effect otherwise than for the purpose of subsection (11).

(13) This section does not apply to a power of attorney given before the commencement of Schedule 1 to the Conveyancing (Powers of Attorney) Amendment Act 1983.

(14) This section has effect subject to Part 3.

s 50: Subst 2009 No 49, Sch 2.46 [6]. Am 2013 No 95, Sch 5.10 [10].

Powers of attorney may be registered

51 Powers of attorney may be registered

(cf 1919 No 6, s 163 (1) and (3))

(1) Any instrument executed before or after the commencement of this Act that creates a power of attorney may be registered by the Registrar-General in the General Register of Deeds kept under the Conveyancing Act 1919.

(2) An instrument revoking a registered power of attorney may also be registered by the Registrar-General in that Register.

Powers of attorney to be registered for dealings affecting land

52 Powers of attorney to be registered for dealings affecting land

(cf 1919 No 6, s 163 (2) and (4))

(1) A conveyance or other deed affecting land executed on or after 1 July 1920 under a power of attorney has no effect unless the instrument creating the power has been registered.

Note.

1 July 1920 is the day on which the Conveyancing Act 1919 commenced.

(2) If the instrument is registered after the time when the conveyance or other deed was executed, the conveyance or other deed has effect as if the instrument had been registered before that time.

(3) In this section, deed includes any memorandum, dealing or other instrument affecting land that is deemed by an Act to have effect as a deed.

(4) This section does not apply to a lease for a term of 3 years or less.

Part 7

Miscellaneous

Part 7 Miscellaneous

Regulations

53 Regulations

(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) A regulation may create an offence punishable by a penalty not exceeding 25 penalty units.

Nature of proceedings for offences

54 Nature of proceedings for offences

(1) Subject to subsection (2), an offence under this Act is to be prosecuted on indictment.

(2) Proceedings for an offence under the regulations may be dealt with summarily before the Local Court.

s 54: Am 2007 No 94, Sch 2.

55

55 (Repealed)

Savings, transitional and other provisions

56 Savings, transitional and other provisions

Schedule 5 has effect.

Review of Act

57 Review of Act

(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.

(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

Schedule 1

Repealed provisions of Conveyancing Act 1919 with continuing operation

Schedule 1 Repealed provisions of Conveyancing Act 1919 with continuing operation

(Section 6 (4))

Part 16