Creates two kinds of powers of attorney: a "general power of attorney" that works only while the person (the principal) can make decisions (s 7), and an "enduring power of attorney" that continues to operate if the principal later loses decision‑making capacity (s 8, s 32).
Defines the subject matters attorneys may act about: property matters (examples at s 10), personal care matters (s 11), health care matters (s 12) and medical research matters (s 12A and pt 4.3A).
Sets who may appoint attorneys and basic limits (an adult principal appoints attorneys, s 13; enduring powers have additional limits on appointing corporations and bankrupt people, s 14).
Prescribes formal signature and witnessing rules for making powers of attorney (s 19–s 23) and requires attorneys to accept enduring appointments in writing before they are effective for that attorney (s 23).
Specifies how and when powers can be exercised (the principal may state when/how powers apply, s 16; an enduring power of attorney acts as a general power for property while the principal still has capacity, s 31; an enduring power is not revoked by later impaired capacity, s 32).
Limits what attorneys may do (they cannot lawfully act in relation to special personal matters or special health care matters, s 35–s 37) and restricts gifts and conflict transactions unless expressly authorised (s 34, s 38–s 41, s 42).
Adds a specialist regime for consent to participation in medical research and low‑risk research when a principal lacks capacity, including decision‑making principles, approval and independent medical assessment requirements, and ACAT review rights (pt 4.3A: s 41A–s 41G).
Mechanically, the Powers of Attorney Act 2006 establishes a statutory framework for general and enduring powers of attorney in the Australian Capital Territory. It sets who may be a principal and who may be appointed an attorney (s 13), the formal requirements for making a valid power (ss 19-22), how powers operate (chs 3-4), what attorneys can and cannot do (Divs 4.3.1-4.3.2, pt 4.3A), obligations and record-keeping duties on attorneys (ss 42-48), dispute and review pathways through the ACT Civil and Administrative Tribunal (ACAT) and the Supreme Court (chs 7 and ss 75, 80-82), and remedies for misconduct including compensation orders (ss 50, 50A) and criminal offence for dishonest inducement (s 90). The Act also recognises interstate instruments (chs 8, ss 88-89) and provides protection for third parties dealing with attorneys in good faith (chs 6, ss 71-73). The instrument treats powers of attorney that comply with the Act as deeds (s 29), so lawyers and registrars must consider registration requirements for land dealings under Land Titles Act 1925 when attorneys act in relation to land (s 29(1) note).
The Act distinguishes two operation types. A general power of attorney operates only while the principal has decision-making capacity (s 7). An enduring power of attorney is not revoked by the principal becoming a person with impaired decision-making capacity (s 8) and can operate after capacity is lost in relation to the matters authorised (s 32). The Act divides decision areas into property matters, personal care matters, health care matters and, since 2016, medical research matters (ss 10-12A, pt 4.3A).
The legislation also allocates decision-space and checks. It imposes formal witness and certification rules intended to create evidentiary protections that a principal understood the nature and effect of the instrument (ss 19-22, ss 17-18). For enduring instruments, the attorney must accept the appointment in writing (s 23), adding a discrete acceptance step. Attorneys are subject to conflict-of-interest and record-keeping duties (ss 42, 47-48) and the general principles in schedule 1 apply to the maximum extent possible when an attorney acts for an incapacitated principal (s 44, sch 1).
Current sections
Direct links to the current provisions in Powers of Attorney Act 2006.
106
Official source available
Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.
Sourced from the ACT Legislation Register (legislation.act.gov.au), CC BY 4.0.
Imposes ongoing duties on attorneys (keep interested people informed, s 43; follow the general principles for enduring powers, s 44 and schedule 1; keep records for property matters, s 47; keep the principal’s and attorney’s property separate, s 48).
Gives obligations to health care facilities to check for and keep copies of enduring powers of attorney (s 49).
Provides dispute and oversight pathways: ACAT may be involved for directions and compensation (s 27, s 50A), the Supreme Court may confirm or validate acts by attorneys (s 80–s 82), and interested persons may apply for review (s 74, s 41G).
Protects third parties dealing with an attorney who is unaware an instrument is invalid and provides civil remedies and relief from personal liability in cases of honest mistakes (s 71–s 73, s 52).
Contains criminal liability for dishonestly inducing someone to make or revoke a power of attorney (s 90).
Who it affects
Principals (adults who make powers of attorney) — they choose the scope, when the power starts, and who the attorneys are (s 13–s 16, s 17).
Attorneys — gain legal authority constrained by express terms, statutory limits and duties (ch 4). Attorneys under enduring powers must accept appointments in writing (s 23) and carry record‑keeping and information duties (s 43, s 45, s 47, s 48).
Relatives, carers and other "interested persons" — have standing to apply to ACAT and receive information in certain circumstances (s 74, s 41G, s 83–s 85).
Health care providers and health facilities — must respond to enduring powers and follow procedural rules when an attorney makes health or research decisions (s 46, s 46A, s 49, pt 4.3A).
Public bodies — the ACAT and Supreme Court exercise oversight (s 27, s 75, s 80–s 82); the public trustee and public advocate have specified roles (s 83–s 84).
Why it matters (stated purpose claims and how the law’s mechanics create incentives, costs and trade‑offs)
The Act’s stated purpose (in its long title) is to provide law about powers of attorney and related matters. Mechanically it establishes how private appointments are made and enforced (s 1, s 13) and builds statutory duties, oversight and remedies.
Incentives and private choice: the Act gives principals broad freedom to shape powers of attorney (limits and express authorisations are possible, s 13–s 16, s 34, s 39–s 41). That preserves private choice about who makes decisions and what decisions are delegated, but also shifts control from the principal to the attorney when the principal loses capacity (the principal cannot revoke an enduring power once they lack capacity—see s 17(f)(ii) and s 32).
Market and provider effects: enduring powers of attorney are restricted for corporations in some roles (s 14) — the Act allows only the public trustee and trustee companies in certain property roles and excludes most corporations from personal care, health care and medical research roles (s 14(1)–(2)). This changes the available options for principals who might otherwise use commercial trustee or corporate care providers for enduring decision‑making.
Compliance and administrative costs: making a valid instrument requires formal signing and witnessing (s 19–s 23) and enduring appointments impose ongoing duties on attorneys (information obligations s 43, right to available information s 45, record keeping s 47, separation of property s 48). Health facilities must implement processes to check for and keep copies of enduring powers (s 49). These elements create time, paperwork and monitoring costs for principals, attorneys, health providers and public bodies.
Oversight, discretion and enforcement costs: the Act routes contested matters to ACAT (s 27, s 41G, s 50A) and the Supreme Court (s 75, s 80–s 82). Those review pathways impose procedural and resource costs on public tribunals and courts, and give those bodies discretion to make or refuse orders (s 50, s 52). The Act also provides civil remedies (compensation under s 50 and s 50A) and a narrow criminal offence (s 90).
Conflict and anti‑self‑dealing rules: the Act restricts attorneys from benefiting unless expressly authorised (s 34), limits conflict transactions unless pre‑authorised (s 42) and forbids attorneys from accepting fees/benefits or being connected to medical research they consent to (s 41E). These rules reduce financial incentives for self‑dealing but can also constrain otherwise simple transactions unless the power expressly permits them.
Medical research trade‑offs: the Act allows attorneys to consent to approved low‑risk research and, in specific circumstances, to approved medical research (pt 4.3A: s 41C–s 41D). Consent for clinical/research participation requires ethics approval, an independent doctor’s assessment that the principal is unlikely to regain capacity within the relevant research timeframe (s 41D, s 41F), and ACAT assistance where required (s 41C–s 41G). Those safeguards reduce the risk of unsuitable enrolment but introduce extra approvals, medical assessments and potential delays for researchers and health providers.
Who pays and who decides: principals choose attorneys and set terms (s 13–s 16), attorneys make day‑to‑day decisions (s 6), and costs of compliance — record keeping, professional advice, medical assessments, tribunal or court proceedings — are generally borne by the private parties involved (principals, attorneys, providers) or by public bodies when they exercise oversight (s 47, s 41F, s 75, s 80–s 82). If an attorney breaches the Act and causes loss, the attorney may be ordered to compensate (s 50, s 50A) but may seek relief from liability if the court considers the attorney acted honestly and reasonably (s 52).
Implementation and risk notes (mechanisms, not judgments)
The Act depends on cross‑agency processes: health facilities must identify and store enduring powers (s 49); independent doctors must provide written assessments for research consent decisions (s 41F); ACAT and courts provide directions and compensation (s 27, s 50A, s 80–s 82). These create points where operational failures or delays could affect outcomes.
The law balances private delegation with public oversight: attorneys gain significant legal authority once appointed (s 31–s 32) but face statutory duties, documentation and review rights for interested persons (s 43–s 45, s 50A, s 41G). The principal’s ability to tailor powers (s 13–s 16) means responsibilities and burdens are partly shifted by contract‑style drafting and the express terms of the instrument.
(Selected section references: s 6–s 14 (who and what), s 16–s 23 (formalities), s 29–s 38 (operation and limits), pt 4.3A (s 41A–s 41G) (medical research), s 42–s 48 (duties), s 49 (health facilities), s 50–s 52 (remedies and relief), s 71–s 73 (third‑party protections), s 74–s 75, s 80–s 82 (ACAT/Supreme Court), s 90 (criminal offence)).
The Act contains targeted limits: it forbids attorneys from lawfully doing specified “special personal matters” (wills, making or revoking powers of attorney, voting, adoption, marriage) and “special health care matters” (sterilisation, termination of pregnancy, electroconvulsive therapy, psychiatric surgery, voluntary assisted dying, and other prescribed matters) (ss 35-37). Where the principal expressly authorises otherwise (eg gifts), the Act supplies default tests and reasonableness limits (ss 38-41).
Finally, the Act establishes enforcement and protection mechanisms: remedies in the Supreme Court (s 50) and ACAT (s 50A), relief from liability where an attorney acted honestly and reasonably (s 52), and protection for third parties who unknowingly deal with an attorney under an invalid instrument (ss 72-73). The Act also cross-references other Territory and Commonwealth laws for specific health, mental health and transplantation matters (see ss 37, 41A and notes).
The Act’s stated objects and notes are concise, but the structure reveals the policy trade-offs embedded in design: facilitating private delegation while creating procedural safeguards, preserving principals’ autonomy where possible, and creating administrative and judicial oversight channels for disputed or difficult situations.
Main concepts
The Act defines and organises a small set of core concepts that determine legal effect and operation.
Principal and attorney (s 6). The principal is the adult who grants authority; the attorney is the person authorised to act. The Act makes clear that attorneys can be individuals or, in limited circumstances, corporations (s 13(1) note; s 14).
General power of attorney (s 7). Operates only while the principal has decision‑making capacity (s 7). It can authorise anything the principal could lawfully do on the subject matter at the time of exercise (s 13(1)).
Enduring power of attorney (s 8). An enduring power survives the principal’s loss of decision‑making capacity and so is specifically designed to operate when the principal no longer can make or understand decisions (s 32). While the principal retains capacity, an enduring power operates as a general power for property matters (s 31).
Decision‑making capacity and impaired capacity (s 9). A person has decision‑making capacity if they can make decisions in relation to their affairs and understand the nature and effect of the decisions (s 9(1)). Impaired capacity means they cannot make such decisions or do not understand their nature or effect (s 9(2)). The Act expressly excludes certain attributes or behaviours from being treated as evidence of incapacity (s 91).
Division of decision areas (ss 10-12A). The Act divides legal subject-matter into property matters (s 10), personal care matters (s 11), health care matters (s 12), and medical research matters (s 12A, with definitions and detailed regime in pt 4.3A). This taxonomy drives what may and may not be authorised and affects post‑capacity operation.
Formality and evidentiary presumption (ss 19-22, 17-18). A power of attorney must be signed by the principal (or on their direction by an eligible signer), witnessed by two adults who sign certificates (s 19). For enduring instruments, one witness must be authorised to witness statutory declarations (s 21(3)). A principal who executes an instrument is presumed to have understood it in the absence of evidence to the contrary (s 18), although witness certificates must state the principal appeared to understand the nature and effect (s 22).
Limits on authority (chs 4.3, 4.3A). The Act sets express exclusions (special personal and special health care matters, ss 35-37), constraints on gifts and benefit transactions (ss 34, 38-41), and conflict transaction rules requiring express authorisation (s 42). For medical research matters the Act imposes specific approval, independent medical assessment, decision-making principles and ACAT review routes (pt 4.3A, ss 41A-41G).
Oversight, remedies and protections (chs 6-7). The ACAT and Supreme Court have powers to review, give directions and make compensation orders (ss 50, 50A, 75). Courts may relieve attorneys who acted honestly and reasonably (s 52). The Act protects persons who act in accordance with court or ACAT orders (s 71) and shields third parties dealing in good faith with attorneys from invalidity risks (ss 72-73).
These concepts structure incentives: the formality and witness rules make principals and advisers invest in correct execution; enduring powers transfer operational authority into future periods of incapacity while requiring attorney acceptance (s 23) and ongoing duties that create monitoring and evidentiary costs; oversight routes (ACAT and Supreme Court) create dispute-resolution options but also procedural and legal costs for interested persons.
Who it affects
The Act creates rights and duties that affect several identifiable groups and institutions, and it shifts costs and decision rights among them.
Principals (adults) (s 13). Principals decide whether to create a general or enduring power and articulate its scope (ss 13, 16). The Act places on principals the obligation to take reasonable steps to notify attorneys when revoking a power (s 55). Principals bear the primary cost of ensuring the instrument is correctly executed to statutory form (ss 19-22).
Attorneys. Attorneys acquire legal authority to act within instrument scope (s 13(1)-(2)). Enduring attorneys must sign to accept an appointment (s 23) and, when acting for a principal with impaired capacity, must comply with the general principles (s 44), keep records (s 47), maintain property separate (s 48), and obtain information to which the principal would be entitled (s 45). Attorneys face potential personal liability for breach (ss 50, 50A), subject to relief where they have acted honestly and reasonably (s 52). If an attorney is insolvent or bankrupt, property powers may be revoked (s 62).
Third parties and institutions. Health care facilities must ask clients if they have enduring powers of attorney, keep copies and periodically check their currency (s 49). Banks, registrars and other persons dealing with attorneys are protected when they deal in good faith and without knowledge of invalidity (ss 72-73). Persons dealing with attorneys but who know of false information given to court/ACAT have reduced protection (s 71(3)).
Interested persons. The Act defines interested persons broadly (s 74) to include attorneys, principals, relatives, the public advocate, the public trustee and guardian, guardians, managers, and any person prescribed by regulation. Interested persons have standing to apply to ACAT and the Supreme Court for directions and remedies (ss 27, 50A(4)(b), 75, 80-82).
ACAT and the Supreme Court. ACAT is a central review forum with power to order compensation, give directions and refer matters to the Supreme Court (ss 50A, 75). The Supreme Court can confirm powers under particular factual situations (ss 80-82) and make compensation orders (s 50).
Public trustee and public advocate. The public trustee and guardian must assist ACAT by examining and reporting on attorney records when asked (s 83). The public advocate is entitled to reasonable access to an incapacitated principal and can be notified where a health professional objects to an attorney’s decision about health or research participation (s 84; s 85).
Health professionals and health facilities. Health professionals are bound by limits when accepting attorney consent to certain treatments, particularly for mental health treatment and medical research matters (ss 46, 46A, 41C-41F). They must report consents for mental health treatment to ACAT and the public advocate (s 46A(5)).
Corporations and trustee firms. The Act restricts corporate attorneys in enduring powers (s 14). Corporations other than the public trustee and guardian or trustee companies under the Trustee Companies Act 1947 cannot be appointed as property attorneys in enduring powers (s 14(1)); corporations other than the public trustee and guardian cannot be appointed for personal care, health care or medical research matters (s 14(2)).
Financially, the Act shifts enforcement costs partly onto attorneys who misapply powers (compensation orders s 50, s 50A). Procedural costs fall on principals and their advisers for correct execution (witnesses, certificates, possibly solicitor involvement) and on health facilities for record-keeping and periodic checks (s 49). ACAT and judicial resources will be used for disputes and direction applications (ss 27, 75).
Key duties and rights
The Act sets out explicit affirmative duties, limitations and rights for principals, attorneys, third parties and public bodies.
Understanding and evidencing the principal’s capacity. Witnesses must certify that the principal appeared to understand the nature and effect of making the power (s 22(1)(b)). The Act also creates a statutory presumption that a principal who makes a power understood its nature and effect in the absence of contrary evidence (s 18). Section 17 lists the specific matters that constitute understanding for these purposes.
Formal execution requirements and witnesses. Powers must be signed by the principal (or by someone eligible and at the principal’s direction) and signed and dated by two adult witnesses present with the principal and each other; each witness must sign a statutory certificate (s 19). For enduring powers one witness must be authorised to witness a statutory declaration (s 21(3)).
Attorney acceptance. An enduring power is ineffective in relation to an attorney until the attorney accepts by signing (s 23). This is an explicit duty for attorneys to manifest consent and creates a clear evidentiary point.
Authority and scope. A principal may authorise attorneys to do anything the principal could lawfully do by attorney (s 13(1)). The principal can specify when and how powers are exercisable (s 16). Multiple attorneys may be authorised to act together or separately; if not specified, two or more attorneys must act jointly (s 26), and special ACAT relief is available where joint exercise is impracticable and the principal has impaired capacity (s 27).
Restrictions on content of powers. The Act creates non‑delegable “special” matters an attorney may not lawfully undertake: special personal matters (wills, making or revoking powers, voting, adoption, consenting to marriage) and special health care matters (sterilisation, termination, ECT, psychiatric surgery, voluntary assisted dying, and others prescribed) (ss 35-37). The Act also limits gifts from an enduring power unless express and reasonable (ss 38-39).
Conflict and benefit rules. Attorneys must not enter conflict transactions unless the principal authorised that kind of conflict in the power (s 42). A power does not authorise an attorney to benefit themselves from a transaction unless the power expressly authorises such a benefit (s 34). For medical research, attorneys must not accept fees or be involved or connected with the research (s 41E).
Obligations to keep interested people informed. When an attorney resigns or is removed, or a court/ACAT order affects appointment, the relevant person must notify other attorneys and persons dealing with the attorney, unless the notified person already knows on reasonable grounds (s 43).
Duties while principal lacks capacity. The general principles (schedule 1) must be complied with to the maximum extent possible by attorneys acting under enduring powers for incapacitated principals (s 44). Attorneys have rights to available information that the principal would have had (s 45), and must consult doctors before withholding or withdrawing medical treatment (s 46).
Record-keeping and financial separation. Attorneys for property matters under enduring powers must keep accurate records and accounts (s 47) and keep their own property separate from the principal’s property (s 48) except for joint ownership or as otherwise provided by law.
Rights of third parties. Persons who act in accordance with ACAT or court orders are treated as compliant with the Act (s 71). Persons dealing with attorneys without knowledge of invalidity obtain protection where the attorney’s instrument or exercise proves invalid (ss 72-73).
Remedies and relief. Courts and ACAT may order compensation to the principal or estate for losses, or require accounting for profits (ss 50, 50A). Courts may relieve attorneys from personal liability where they acted honestly and reasonably and ought fairly to be excused (s 52).
These duties create predictable compliance tasks and documentation requirements for attorneys and institutions and create rights to information and oversight for interested persons. Rights and duties interplay with other statutory regimes for mental health, medical treatment directions, transplantation and land registration (see ss 12, 37, pt 4.3A and notes).
Penalties and enforcement
The Act relies primarily on civil remedies, administrative oversight and constrained criminal penalties.
Criminal offence: dishonest inducement. The Act creates one specific criminal offence: a person must not dishonestly induce someone to make or revoke a power of attorney (s 90). The maximum penalty is 100 penalty units, imprisonment for one year, or both. Penalty unit values at the republication date are specified in the front material: $160 per unit for an individual and $810 per unit for a corporation (Legislation Act note at front). That translates to the statutory maximum monetary exposure indicated in the republication note.
Civil remedies: compensation and accounting. The Supreme Court can order an attorney to compensate the principal or estate for loss caused by failing to comply with the Act (s 50). The ACAT can order compensation and require accounting for profits resulting from non‑compliance (s 50A). The ACAT may initiate proceedings on its own motion or act on application by an interested person (s 50A(4)). Section 51 requires courts to credit compensation already paid under s 50 when assessing damages in subsequent civil proceedings.
Administrative oversight: ACAT and Supreme Court roles. The ACAT may provide directions or orders where multiple attorneys cannot agree (s 27) and may refer matters to the Supreme Court (s 75). The ACAT can review consents in respect of medical treatment and mental health treatment as provided (s 46A(7)), and interested persons can apply to ACAT for review of an attorney’s decision about medical or low-risk research participation (s 41G).
Relief and protection. A court or ACAT may relieve an attorney from personal liability if the attorney acted honestly and reasonably and ought fairly be excused (s 52). The Act protects attorneys who act in accordance with a court or ACAT order (s 71). The Act also protects third-party transactions made in good faith when an attorney or power proves invalid (ss 72-73).
Procedural limits and time bars. There are procedural time limits for bringing applications after death in some cases: if the principal or attorney has died, applications for compensation must generally be made within six months (s 50(3)-(4); s 50A(5)). Supreme Court may extend these time limits (s 50(5)).
Administrative reporting obligations for health consents. Consents given by attorneys to mental health treatment must be in writing, for stated periods not exceeding six months, and health professionals must notify ACAT and the public advocate in writing about the consent (s 46A(2)-(5)). ACAT may review such consents (s 46A(7)).
Enforcement therefore combines civil redress against attorneys, administrative oversight through ACAT and court confirmation powers, and narrow criminal sanctions targeted at dishonest inducement. The liability regime also contains relief mechanisms that enable courts to temper enforcement where attorneys acted honestly and reasonably (s 52), and protections for third parties to reduce transaction risk (ss 72-73). The result is an enforcement architecture that prioritises restoration and correction through civil remedies and administrative remedies rather than broad criminal sanctions.
How it interacts with other laws
The Act is designed to operate alongside a range of Territory and Commonwealth instruments; the text cross-references several statutes and regimes and creates interaction points that advisers must consider.
Legislation Act 2001. The Act uses external definitions and drafting presumptions from the Legislation Act (see front material and s 19 note referring to Legislation Act s 160(1) and the dictionary), and the provisions about republication and editorial amendments appear in the front matter.
Guardianship and Management of Property Act 1991. The Act expressly restricts who may make an enduring power where a guardian or manager is appointed: a person for whom a guardian or manager is appointed cannot make an enduring power without ACAT approval of the provisions (s 14(3)). The Act also cross-references the guardianship Act for definitions (s 41B(7) carer definition).
Mental Health Act 2015. The Act imports definitions and cross-references in relation to special health care matters and mental health treatment; for example, electroconvulsive therapy and psychiatric surgery are defined with reference to the Mental Health Act (s 37(2) note), and section 46A creates specific limitations on attorneys consenting to mental health treatment and interacts with mental health order processes (s 46A(9) note referencing Mental Health Act s 51).
Medical Treatment (Health Directions) Act 2006. The Act explicitly requires attorneys, when making research-related decisions, to comply with existing health directions under that Act where consistent (ss 41C(2) and 41D(2) notes). That means an attorney’s decision is subordinate to valid health directions made by the principal.
Transplantation and Anatomy Act 1978 (and similar transplantation laws). Health care matters examples include donations under that Act (s 12 example and s 37(1)(a) non-regenerative tissue removal rule with cross-reference). The Act preserves rights and restrictions governed by transplantation law.
National Statement on Ethical Conduct in Human Research (NHMRC) and Therapeutic Goods regime. The medical research regime in part 4.3A requires research to be approved by a human research ethics committee constituted in accordance with the National Statement (s 41A(1) approved definition). The Act references the Australian Register of Therapeutic Goods for clinical trial considerations in s 41A(2).
Aged care, disability and health facility regimes. The Act defines “residential care home” in terms of the Aged Care Act 2024 (Cwlth) and defines residential disability care facilities in the dictionary, and requires health care facilities to ask about enduring powers and retain copies (s 49). Consequently, providers under Commonwealth aged care regulation must adapt internal processes to meet s 49 obligations.
Land Titles Act 1925 and Registration of Deeds Act 1957. Because a valid power of attorney under this Act is treated as a deed (s 29), attorneys conducting land transactions must ensure compliance with registration requirements for deeds and matters requiring registration under those Acts (s 29(1) note).
Prior Territory Acts and forms. The Act recognises powers made under prior Territory laws (Powers of Attorney Act 1956, Medical Treatment Act 1994) and converts certain extant instruments into enduring powers (ss 92-95), mitigating transitional invalidity risk.
Interaction with ACAT and courts. The Act provides multiple referral and review routes to ACAT and the Supreme Court (ss 75, 80-82). ACAT can refer matters to the Supreme Court (s 75) and must be considered alongside the ACT Civil and Administrative Tribunal Act 2008 for jurisdictional rules.
These interaction points produce a number of practical consequences: attorneys and advisers must check for consistency with health directions and mental health orders; health facilities and aged care providers must incorporate new intake and record-keeping processes (s 49); lawyers handling land transactions must treat powers as deeds and satisfy land registration conditions (s 29); conflicting or overlapping rights under other regimes may require ACAT or court resolution (ss 75, 80-82).
Amendment history
The Act has been amended repeatedly since its original notification in 2006. The endnotes provide a detailed chronology of amendments and commencements that are relevant for contemporary practice.
Initial passage and commencement. The Act was notified LR 30 November 2006; parts commenced on 30 November 2006 and the remainder on 30 May 2007 (Legislation history).
2007-2010: early technical amendments. Amendments and regulations in 2007-2010 adjusted witness rules, provisions about multiple attorneys, and transitional arrangements (Powers of Attorney Regulation 2007, Justice and Community Safety amendments cited in the endnotes; see Legislation history entries for A2007-22, A2008-7, A2010-30).
2014-2016: mental health and medical research. Significant substantive changes arrived mid‑decade. Amendments interacting with mental health treatment and consent were introduced with the Mental Health (Treatment and Care) Amendment Act 2014 and the Mental Health Act 2015 (notably changes referenced in the endnotes under 2014-2016). The Powers of Attorney Amendment Act 2016 (A2016-10) inserted part 4.3A (medical research matters) with new definitions (s 41A) and decision-making principles (s 41B) and the suite of related sections (ss 41C-41G). Schedule 1 (general principles) was amended in 2016 (see Amendment history).
2016-2021: process and oversight adjustments. The Act was further amended to refine obligations on health care facilities, record-keeping and ACAT/Supreme Court referral powers (e.g. amendments in A2016-13, A2017-28, A2020-14 and A2021-13). The 2020 emergency response amendment altered s 45 in a way that had temporary provisions (s 45(1A),(5),(6) expiry noted as 29 September 2023).
2021-2023: ACAT, compensation and definitions. The Courts and Other Justice Legislation Amendment Act 2021 and Justice and Community Safety Legislation Amendment Act 2021 refined compensation provisions and ACAT powers (see A2021-13 in the endnotes and insertion of s 50A). The A2023-13 amendments adjusted definitions relevant to therapeutic goods and medical research (endnotes reference A2023-13 s 23 and s 24).
2024-2025: voluntary assisted dying and administrative updates. Voluntary Assisted Dying Act 2024 (A2024-24) amendments are recorded in endnotes as commencing 3 November 2025 (sch 3 pt 3.6), which affects the definition of special health care matters to include voluntary assisted dying (s 37(1)(e) and associated notes). The Justice and Community Safety Legislation Amendment Act 2025 (A2025-22) and Statute Law Amendment Act 2025 (A2025-29) made late 2025 amendments; endnotes state these commenced 1 November 2025 and 26 November 2025 respectively (Legislation history entries).
Transitional and savings. The Act contains provisions preserving validity of instruments made under prior law (s 92) and specific transitional recognition for instruments made under the Powers of Attorney Act 1956 or Medical Treatment Act 1994 (ss 93-95). Several transitional regulation and schedule notes are listed in amendment history (endnotes).
Practitioners should consult the endnotes for precise commencement dates when relying on particular amendments, because some amending provisions either commenced later than their enactment date or had temporary effect windows (see the endnotes entries for A2016-10, A2020-14, A2024-24 and A2025-29).
Litigation history
The text of this republication references one High Court decision indirectly and records an effect on amendments.
Commonwealth v Australian Capital Territory [2013] HCA 55. The endnotes note that the Marriage Equality (Same Sex) Act 2013 (A2013-39) was never effective because of the High Court decision in Commonwealth v Australian Capital Territory [2013] HCA 55 (see endnotes under Legislation history and Amendment history). That note explains why certain amendments tied to the 2013 Act were marked as never effective in the amendment history.
Beyond that single case reference, the Act’s built‑in dispute routes rely primarily on ACAT and Supreme Court proceedings but the republication does not list any decided cases applying the Act. The absence of named cases in the text other than the High Court matter indicates that practitioners must rely primarily on statutory text and administrative guidance for interpreting novel points, and must monitor ACAT and Supreme Court decisions as they are issued.
Given the Act’s repeated amendments and interaction with mental health and medical research regimes, ACAT and Supreme Court decisions interpreting:
the threshold for impaired decision‑making capacity (s 9),
the sufficiency of witness certification (s 22),
the limits on attorney authority in special health care matters (s 37),
and the medical research consent regime (pt 4.3A)
are likely to be important to practitioners. The text, however, supplies no case law beyond the single High Court reference, so current litigation practice will depend on the developing body of ACAT and Supreme Court decisions after the relevant amendments took effect.
Gotchas
The Act contains multiple technical traps and interaction points that produce practical risk if ignored.
Form and witnesses: two-witness certificate and statutory declaration witness. A power of attorney must be signed and witnessed by two adults who also sign certificates attesting voluntary signing and apparent understanding (ss 19-22). For enduring powers, one witness must be authorised to witness statutory declarations (s 21(3)). Failure to comply risks formal invalidity and reliance loss under the instrument despite the statutory presumption of understanding (s 18); however, note s 72-73 provide some protection for third parties acting without knowledge of invalidity.
Attorney acceptance required for enduring powers. An enduring power is ineffective in relation to an attorney until that attorney has signed acceptance (s 23). Practically, advisers must ensure the attorney signs the instrument; otherwise the instrument may not vest authority intended for post-capacity use.
Default joint exercise requirement. If multiple attorneys are authorised but the power is silent, two or more attorneys are authorised to exercise powers together but not separately (s 26). That default can impede urgent transactions where unanimity is impractical; s 27 allows ACAT application where joint exercise is impracticable, but ACAT proceedings are time-consuming and costly.
Gifts and payments: express authorisation and reasonableness. An enduring power does not generally authorise gifts (s 38). A general “make gifts” clause authorises modest gifts to relatives or donations similar to what the principal would have made, subject to a reasonableness test that requires considering the principal’s financial circumstances and estate size (s 39). Attorneys exercising gift powers risk ACAT or court scrutiny and must document reasonableness (ss 39(3)-(4)).
Conflict transactions and benefit restrictions. An attorney may enter conflict transactions only if the principal expressly authorised such transactions in the power (s 42). A power does not authorise an attorney to do anything that would result in benefitting the attorney unless expressly authorised (s 34). Practically, drafting must anticipate and expressly authorise commercially necessary arrangements to avoid later disputes.
Special health care and personal matters excluded. The Act disallows delegation for special personal and special health care matters (ss 35-37). The inclusion of voluntary assisted dying in special health care matters following the Voluntary Assisted Dying Act 2024 amendments (endnotes) means attorneys cannot authorise or consent to those matters. Advisers must not assume general authority extends to these sensitive areas.
Mental health treatment consent restrictions. An attorney may consent to certain mental health treatment only if (i) the principal lacks capacity, (ii) there is no prior advance consent direction authorising the treatment, and (iii) the principal expresses willingness to receive the treatment (s 46A(1)-(3)). Consent must be written, for stated periods not exceeding six months, and health professionals must inform ACAT and the public advocate (s 46A(2)-(5)). This creates procedural obligations and monitoring/reporting exposures for health providers and attorneys.
Medical research: layered approvals and independent medical assessment. For low-risk research, an attorney may consent only where the research is approved (s 41C(2)). For broader medical research, consent is permitted only if the research is approved, the principal is unlikely to regain capacity before meaningful participation ends, and the attorney is satisfied on reasonable grounds about benefit/risk factors (s 41D(2)). An independent doctor must provide a written assessment of the likelihood of regained capacity (s 41F). These steps add administrative cost and create a clear sequence of required evidence.
Health directions and precedence. Where a principal has a health direction under the Medical Treatment (Health Directions) Act 2006, attorneys must comply with the most recent document in cases of inconsistency (ss 41C(2) and 41D(2) notes). Practitioners must check for existing health directions before relying on an attorney’s consent.
Revocation triggers other than principal’s decision. An enduring power may be revoked as to an attorney by events such as marriage to someone other than the attorney (s 58), end of marriage with the attorney (s 59), death (s 60), attorney’s bankruptcy (s 62) or becoming incapacitated (s 63). These automatic revocation rules can produce unexpected gaps in authority if not monitored (see s 43 notice duties and s 55 requirements for principals to inform attorneys of revocation).
Interaction with other regimes and registration requirements. Powers are deeds (s 29) and must satisfy land dealing registration rules for land transactions. Practitioners often overlook that additional documentary steps are needed for land dealings, including registrar requirements.
Time limits for compensation applications after death. Applications for compensation to the court where the principal or attorney has died must generally be made within six months of death (s 50(3)-(4); s 50A(5)), though courts may extend time (s 50(5)). Interested persons should be alert to these deadlines.
These points create operational hazards in execution, post‑execution monitoring and dispute situations. Clear drafting, robust record-keeping (s 47) and proactive notification procedures (s 43; s 49 for health facilities) mitigate many of these risks.
How to comply
This section sets out practical steps, grounded in statutory requirements, that principals, attorneys, health facilities and advisers should follow to reduce legal and implementation risk.
For principals and drafters
Decide general or enduring and scope. Specify whether the instrument is a general or an enduring power and the matters to be authorised (ss 7-8, 13). State when and how powers are exercisable (s 16). If gifts, conflict transactions or benefit transfers are intended, include express authorisation and set objective limits (ss 34, 38-42).
Execution formalities. Ensure the document is signed by the principal or by someone eligible to sign for the principal at the principal’s direction (s 19(1); s 20), and is signed and dated by two adult witnesses in the joint presence of the principal and each other (s 19(2)). For an enduring power, ensure one witness is authorised to witness statutory declarations (s 21(3)).
Witness certificates. Each witness must sign a certificate confirming voluntary signing and that the principal appeared to understand the nature and effect (s 22). Follow the matters in s 17 (which describe what “understanding” comprises) to be ready to show compliance.
Attorney acceptance. For enduring powers ensure each attorney signs the instrument to accept the appointment (s 23). Record the date of acceptance.
Draft for multiple attorneys. If appointing multiple attorneys, explicitly state whether they should act jointly, jointly but separately, or in specified circumstances to avoid the default joint-only rule (s 26). If the intention is for separate authority, say so explicitly (s 25).
Address special matters. Do not attempt to authorise special personal or special health care matters through a power of attorney; these are excluded (ss 35-37). If specific health directions exist, reconcile the power with existing health directions under the Medical Treatment (Health Directions) Act 2006 (see ss 41C(2), 41D(2)).
Specify conflict and gift rules. If you wish the attorney to be able to enter conflict transactions or make significant gifts, include express wording authorising conflict transactions of the relevant kind and set explicit criteria or limits to show reasonableness is considered (s 42; ss 38-40).
For attorneys
Accept formally and maintain records. For an enduring power sign to accept (s 23). Keep accurate records and accounts of all property transactions (s 47) and keep attorney property separate from the principal’s property (s 48).
Follow general principles and seek information. When acting for an incapacitated principal, act in accordance with schedule 1 to the maximum extent possible (s 44) and request available information the principal would otherwise be entitled to (s 45). Consult health providers before withholding or withdrawing treatment and follow s 46 conditions.
Medical research and low-risk research. If asked to consent to research participation, apply the decision-making principles (s 41B), ensure approvals and independent medical assessments as required (ss 41C-41F), and avoid any involvement or benefit from the research (s 41E). Seek ACAT advice when in doubt (ss 41C(3), 41D(3)).
Notify when stepping down or when events occur. If resigning under a general power give written notice to the principal (s 53(1)); under an enduring power with an incapacitated principal seek ACAT leave before resigning (s 53(2)). When resigning or subject to removal or court/ACAT order, notify other attorneys and persons dealing with you unless they already know (s 43).
For health facilities and providers
Intake and record-keeping. Comply with s 49: ask every person receiving care whether they have an enduring power for personal care, health care or medical research, keep a copy with the person’s records, and implement periodic currency checks.
Mental health and consent reporting. For consents under s 46A, ensure written consent for stated periods no longer than six months, report to ACAT and public advocate in writing (s 46A(2)-(5)), and understand that ACAT can review consents (s 46A(7)).
Research consents. Before accepting attorney consent for research, confirm human ethics committee approval and the independent medical assessment where required (ss 41A, 41D, 41F). If in doubt, request ACAT opinion (ss 41C(3), 41D(3)).
For institutions and third parties dealing with attorneys
Check formalities and good-faith status. If you are a bank or third party relying on an attorney, check signature, witness certificates and possible revocation triggers. The Act protects transactions made in good faith without knowledge of invalidity (ss 72-73), but careful checking reduces risk.
Land dealings and registration. Treat powers of attorney as deeds for land transactions and satisfy registration rules under Land Titles Act procedures (s 29).
For advisers
Document discovery and advice. When advising principals, document capacity assessments and the principal’s expressed wishes. Witness certificates require that witnesses state the principal appeared to understand the nature and effect of the instrument (s 22), so adviser involvement and contemporaneous notes assist evidentiary proof.
Consider cross‑jurisdiction and prior instruments. Check for prior instruments made under previous Acts (ss 92-95) and for interstate enduring instruments (ss 88-89). If an interstate enduring instrument is expressed to survive capacity loss and otherwise complies, it will be treated as an enduring instrument under ACT law to the extent consistent with this Act (s 89).
Prepare for dispute resolution. When contentious or valuable transactions are contemplated, consider obtaining ACAT directions or Supreme Court confirmation (ss 27, 75, 80-82) before acting to secure protection under s 71 and to reduce future exposure under ss 50-52.
Operationally, compliance requires a mix of correct execution, proactive record-keeping, clear drafting on scope and conflict authorisations, and engagement with ACAT or courts in high-risk or ambiguous cases. The Act supplies procedural pathways but also places responsibility on principals, attorneys and institutions to follow steps that create evidentiary distance against later disputes.