Powers of Attorney Act 2000

Powers of Attorney Act 2000

An Act to provide for the registration of powers of attorney

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Powers of Attorney Act 2000 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –

attorney means a person to whom a power of attorney is given;

Board means the Guardianship and Administration Board;

certified copy, in the case of a power of attorney or print-out, means a copy of that power of attorney as registered or print-out that –

(a) is certified by the Recorder to be a copy of the power of attorney or print-out; or

(b) in the case of a copy created by a facsimile or electronic transmission process, has recorded on it by that process an indication that the transmission creating the copy was initiated in an office of the Recorder and a record of the time and date of the transmission;

computer means any device for storing or processing information;

Court means the Supreme Court;

donor means a person who grants a power of attorney;

enduring power of attorney means an enduring power of attorney created under section 30 ;

machine copy has the same meaning in the case of a power of attorney as, under section 68A of the Evidence Act 1910 , it has in the case of a document to which Division 5A of Part III of that Act applies;

person acting judicially has the same meaning as it has for the purposes of the Evidence Act 1910 ;

photocopying process, in the case of a copy of a power of attorney, means the process of making a photographic copy or machine copy of the power of attorney;

photographic copy, in the case of a power of attorney, means a print made from a transparency of the power of attorney;

print-out, in the case of a computer, means the output of that computer produced in a form that can be understood by sight;

Recorder means the Recorder of Titles;

register means the register of powers of attorney kept under section 4 ;

repealed Act means the Powers of Attorney Act 1934 ;

transparency has the same meaning in the case of a power of attorney as, under section 68A of the Evidence Act 1910 , it has in the case of a document to which Division 5A of Part III of that Act applies.

(2)  In this Act, a reference to a form is a reference to a form specified in Schedule 1 .

PART 2 - Administration

4.   Register of powers of attorney

(1)  The Recorder must keep a register of all powers of attorney.

(2)  The register consists of all powers of attorney, instruments varying or revoking a power of attorney and other instruments relating to powers of attorney that are lodged with the Recorder under this or any other Act.

(3)  The register may be kept wholly or partly –

(a) on paper, microfilm, magnetic tape, magnetic disk, optical disk or any combination of those media or in or on such other medium as may be approved by the Recorder; or

(b) in such device for storing or processing information as may be approved by the Recorder –

and the Recorder may at any time rearrange the register or change any such medium or device accordingly.

(4)  The Recorder may include in the register any power of attorney that, immediately before the commencement of this Act, is registered under the Registration of Deeds Act 1935 .

5.   Searches of public records

(1)  The following records are public records:

(a) the register;

(b) powers of attorney and other instruments lodged under this Act for registration;

(c) any index of unregistered dealings kept in the office of the Recorder;

(d) a copy of an order referred to in section 33(2) .

(2)  Any information in a public record is available as may be approved by the Recorder and on payment of such fee, if any, as may be prescribed.

6.   Copies of register

(1)  The Recorder must, on application and payment of the prescribed fee, furnish a person with a certified copy of any part of the register.

(2)  A copy for the purposes of this section may be –

(a) in writing; or

(b) made by such photocopying, facsimile or electronic transmission process as the Recorder determines; or

(c) made partly in accordance with paragraph (a) and partly in accordance with paragraph (b) .

(3)  A certified copy created by a facsimile or electronic transmission process is taken, for the purposes of section 68B of the Evidence Act 1910 , to be a machine copy bearing a certificate purporting to be signed by the Recorder that the copy is a reproduction of an original document in the custody of the Recorder.

7.   Evidence of register when kept in computer

(1)  Where a copy of a power of attorney in the custody of the Recorder is stored in a computer, a document purporting to be a print-out of that power of attorney and certified to be a true reproduction of that power of attorney or a certified copy of that print-out is admissible as evidence of the contents of that power of attorney.

(2)  Where the Recorder is required to produce in court or before a person acting judicially a power of attorney stored in a computer, it is sufficient compliance if the Recorder sends by prepaid post, or causes to be delivered, or transmits by a facsimile or electronic transmission process, to the registrar or proper officer of the court or to the person concerned a document purporting to be –

(a) a print-out of that power of attorney certified to be a true reproduction of that power of attorney; or

(b) a certified copy of that print-out.

8.   Power to sell, destroy or otherwise dispose of certain documents

(1)  The Recorder may, with the written permission of the State Archivist given in accordance with section 20(2)(b) of the Archives Act 1983 , sell, destroy or otherwise dispose of any document or any class of document in the possession of the Recorder which the Recorder considers to be of no value for the purposes of the register.

(2)  Before selling or disposing of a document, the Recorder must mark it as no longer valid.

(3)  The Recorder is taken to be a Head of Agency for the purpose of the application of section 8 of the Archives Act 1983 to the Recorder's powers under this section.

PART 3 - Powers of Attorney and other instruments

Division 1 - Formal requirements

9.   Formal requirements

(1)  A power of attorney or other instrument under this Act –

(a) is to have all writing, printing, signatures, seals and plans clear and legible to the satisfaction of the Recorder and is to be capable of being stored and reproduced on the media or devices used under section 4 for storing and reproducing copies of the register; and

(b) subject to subsection (2) , is to contain any matter that is intended to be in addition to, or to be inserted in and form part of, a power of attorney or other instrument in a page of that power of attorney or other instrument or in the form of an annexure; and

(c) is to be accompanied by the prescribed fee.

(2)  An annexure to a power of attorney or other instrument –

(a) is to be in the same size and form as the power of attorney or instrument; and

(b) is to be referred to in the power of attorney or instrument; and

(c) is to contain identification that it is the annexure to the power of attorney or instrument; and

(d) is, subject to subsection (3) , to be signed by the parties to the power of attorney or instrument or, where the party is a body corporate, by the persons who have attested the affixing of the seal of that body corporate to the power of attorney or instrument; and

(e) is to be pinned or stapled to the body of the power of attorney or instrument.

(3)  If one of the parties to a power of attorney or other instrument is a body corporate that is not required by law to affix its seal to the power of attorney or instrument, an annexure to the power of attorney or instrument is to be signed by any person who is authorised by law to execute the power of attorney or instrument.

(4)  An alteration in a power of attorney, other instrument or annexure is to be made by striking through the word or words intended to be altered so as not to render illegible the original word or words.

(5)  A power of attorney or other instrument is taken to be lodged with the Recorder when a record is made in a medium or device for storing or processing information approved under section 4 .

10.   Requirements for other instruments

(1)  For the purposes of this Act, an instrument that refers to a power of attorney is taken as not being in registrable form unless –

(a) it is made by the donor of the power of attorney or by his or her personal representative; and

(b) it is witnessed in the same manner as that power of attorney; and

(c) it clearly identifies the power of attorney by reference to –

(i) the name of the donor; and

(ii) the name of the attorney; and

(iii) the date on which it was executed; and

(iv) the distinctive number or other means of identification given under section 12(2) .

(2)  It is sufficient compliance with subsection (1)(a) if the instrument is signed by the donor's personal representative with a statement as to how and in what capacity he or she has been appointed to act.

(3)  Nothing in this section is taken to require an instrument to be witnessed by any person who witnessed the power of attorney to which it refers.

Division 2 - Registration of powers of attorney, &c.

11.   Powers of attorney not to be registered except in accordance with this Act

(1)  The Recorder must not register any power of attorney or other instrument except as provided in this Act and unless the power of attorney or other instrument is in accordance with this Act.

(2)  For the purposes of this section, the Recorder is not required to examine a power of attorney or other instrument unless to ensure that it is in accordance with the forms and procedures provided by this Act.

(3)  Where –

(a) a power of attorney or other instrument is lodged with the Recorder under this or any other Act which requires the document to be lodged with the Recorder; and

(b) the document is not in accordance with this Act –

the Recorder must –

(c) refuse to register the power of attorney or other instrument and return it to the person who lodged it; or

(d) advise that person that the Recorder will refuse to register it unless specified corrections are made.

(4)  Where corrections are to be made as mentioned in subsection (3)  –

(a) the person who lodged the power of attorney or other instrument is authorised to remove it for the purpose of making the corrections and to relodge it; and

(b) the Recorder may refuse registration if the corrections are not made within 60 days after notice of the corrections was given to that person, or within such further time as the Recorder may allow; and

(c) the corrections are to be initialled by each person who signed the power of attorney as a party or as a witness.

(5)  Where the Recorder refuses to register a power of attorney or other instrument, he or she shall notify the person by whom the power of attorney or other instrument was lodged or that person's agent of his or her refusal, and may retain one-half of the fees paid on the lodging of the power of attorney or other instrument.

(6)  All fees retained by the Recorder in accordance with subsection (5) are to be paid into the Consolidated Fund.

12.   Lodgment of powers of attorney, &c.

(1)  A power of attorney or other instrument under this Act may be lodged with the Recorder –

(a) by delivery of the original document; or

(b) if so authorised by the Recorder, by transmission to the Recorder of a copy of the original document –

(i) as a transparency or print from a transparency or from a machine copy; or

(ii) by facsimile process; or

(iii) in any other manner approved by the Recorder; or

(c) by the preparation and lodgment of the power of attorney or other instrument in any form otherwise than as a document –

(i) by any device used for the storage or transmission or processing of information approved by the Recorder; or

(ii) in any other manner approved by the Recorder.

(2)  On lodgment of a power of attorney or other instrument, the Recorder must identify it by a distinctive number, a distinctive letter and number or any other identifying procedure.

(3)  A power of attorney or other instrument is taken to be registered –

(a) if the register is kept in paper form, by a notation on the power of attorney that it has been registered; or

(b) if the register is kept on microfilm, by any other medium approved by the Recorder or in such device for storing or processing information as may be so approved, by the Recorder making a notation appropriate to that medium or device that the power of attorney or other instrument has been so registered.

(4)  A notation of registration is to record the date and time when a power of attorney or other instrument is registered.

13.   Authority for lodgment by electronic process

(1)  The Recorder may make an agreement with a person authorising him or her to lodge a power of attorney or other instrument under this Act otherwise than by production of the original document.

(2)  The agreement must provide that the procedures to be followed –

(a) are to be comparable with the normal procedures adopted by the Recorder and will not adversely affect the register; and

(b) will ensure the accurate transmission of the power of attorney or other instrument.

(3)  The Recorder may require a person seeking to lodge a power of attorney or other instrument by electronic means to produce documentary evidence that he or she is authorised to do so.

14.   Lodgment of supporting documents

The application of sections 12 and 13 extend to the lodgment by electronic means of any document required by the Recorder in support of a power of attorney.

15.   Scope of powers of attorney

A document creating a power of attorney for any purpose or varying, revoking or otherwise relating to a power of attorney may be registered, notwithstanding that it was executed before the commencement of this section.

16.   Acts under power invalid until power registered

An act, deed or instrument done, executed or signed under a power of attorney by the attorney has no legal effect unless –

(a) the power of attorney has been registered under this Act before the act, deed or instrument is done, executed or signed; or

(b) in the case of an enduring power of attorney that is subject to an order of the Board made under section 33 , a copy of the order is so registered.

17.   Death, &c., of donor of power may be registered

(1)  Where a power of attorney has been registered under this Act, notice of the death, bankruptcy or insolvency of the donor or of revocation of the power of attorney by the donor is to be registered as provided by subsection (2) .

(2)  For the purposes of subsection (1) , there is to be registered –

(a) a declaration made by a person of the fact of the death, bankruptcy or insolvency of the donor of a power of attorney made before a person having authority to administer an oath in the place, whether in Tasmania or elsewhere, where the declaration is made; or

(b) an instrument of revocation of a power of attorney; or

(c) a notice of revocation under the hand of the donor of a power of attorney; or

(d) in the case of an enduring power of attorney that is revoked, or of which the terms are varied, by an order of the Board under section 33 , a copy of that order.

18.   Form of power of attorney

(1)  A power of attorney may be made –

(a) by deed; or

(b) in accordance with form 1 , conferring particular powers specified in it; or

(c) in accordance with form 2 , conferring power on the attorney to do all things that the donor may lawfully authorise an attorney to do.

(2)  An enduring power of attorney may be made under Part 4 .

Division 3 - Effect of powers of attorney

19.   Application of Division

This Division applies to powers of attorney executed either before or after the commencement of this Act.

20.   Authority conferred by power of attorney

A power of attorney operates to confer power on the attorney to execute any assurance or instrument or do any thing which the donor may execute or do if the performance of which may be delegated by the donor, but the exercise of the power is subject to any conditions or limitations expressed in the power of attorney.

21.   Nature of authority conferred

The authority conferred by the power of attorney, according to the tenor of the instrument by which it is conferred, may be unlimited or may be limited to specific acts and any such limitations may relate to the mode in which, or the time and place at which, the authority may be exercised.

22.   Duration of power of attorney

A power of attorney remains in force until –

(a) it is revoked under this Act; or

(b) it is terminated as mentioned in section 17(2) ; or

(c) the purpose or time for which it was created has been fulfilled or has passed.

23.   Execution under power of attorney

(1)  An attorney may execute any assurance or instrument or do any thing in the attorney's own name and by the attorney's own signature and by the attorney's own seal, where sealing is required, by the authority of the donor.

(2)  An assurance, instrument or thing so executed or done has the same effect as if it had been executed or done by the attorney in the name and with the signature and seal of the donor.

24.   Effect of power of attorney for value made irrevocable

If a power of attorney given for valuable consideration is in the instrument creating the power expressed to be irrevocable, the following provisions have effect in favour of a purchaser:

(a) the power is not to be revoked at any time, either by any thing done by the donor of the power without the concurrence of the attorney or by the death, mental incapacity, bankruptcy or insolvency of the donor;

(b) an act done at any time by the attorney, under the power, is as valid as if any thing done by the donor of the power without the concurrence of the attorney had not been done or as if the death, mental incapacity, bankruptcy or insolvency of the donor had not happened;

(c) neither the attorney nor the purchaser is at any time prejudicially affected by notice of any thing done by the donor of the power without the concurrence of the attorney or by notice of the death, mental incapacity, bankruptcy or insolvency of the donor.

25.   Effect of power of attorney irrevocable for fixed period

If a power of attorney, whether given for valuable consideration or not, is in the instrument creating the power expressed to be irrevocable for a fixed period specified in the power, not exceeding one year from the date of the instrument, the following provisions have effect in favour of a purchaser:

(a) the power is not to be revoked, for and during that fixed period, either by any thing done by the donor of the power without the concurrence of the attorney or by the death, mental incapacity, bankruptcy or insolvency of the donor;

(b) any act done within that fixed time, by the attorney under the power, is as valid as if any thing done by the donor of the power without the concurrence of the attorney had not been done or as if the death, mental incapacity, bankruptcy or insolvency of the donor had not happened;

(c) neither the attorney nor the purchaser is at any time prejudicially affected by notice, either during or after that fixed period, of any thing done by the donor of the power during that fixed period without the concurrence of the attorney or by notice of the death, mental incapacity, bankruptcy or insolvency of the donor within that fixed period.

26.   Appointment of attorney by class

(1)  A power of attorney is taken to be valid notwithstanding that the attorney is expressed to be appointed as a member of a specified class of persons.

(2)  Where a person purporting to act as attorney of the donor under any such power of attorney states in writing that he or she is authorised to act as a member of the specified class –

(a) any other person dealing with the purported attorney may rely on the statement as sufficient authority for him or her to act as such at the relevant time under the power of attorney; and

(b) the statement is taken to be evidence that the purported attorney was, at the relevant time, authorised to act as such under the power of attorney.

Division 4 - Revocation of powers of attorney

27.   Revocation of power of attorney

(1)  A power of attorney, whether registered under this Act or not, is revoked if the attorney is notified of its revocation by the donor or of the death, bankruptcy or insolvency of the donor.

(2)  A power of attorney that is registered under this Act is revoked if notification of its revocation or of the death, bankruptcy or insolvency of the donor is lodged with the Recorder.

28.   Effect on dealings with attorney in good faith

(1)  Where a power of attorney has been revoked or the donor has died or has become subject to a mental incapacity, bankrupt or insolvent, a person dealing in good faith with the attorney without notice of the revocation, death, mental incapacity, bankruptcy or insolvency is not affected by the revocation, death, mental incapacity, bankruptcy or insolvency.

(2)  In the application of subsection (1) to a power of attorney that is registered under this Act, the rights of a person dealing in good faith with the attorney are not preserved if notice of the revocation, death, mental incapacity, bankruptcy or insolvency has been given to the Recorder.

29.   Revocation of unregistered power of attorney

Where –

(a) a power of attorney is not registered under this Act; and

(b) the attorney cannot be found or it is impracticable to give notice of revocation or of the death, mental incapacity, bankruptcy or insolvency of the donor to the attorney –

the power of attorney may be revoked by lodging notice of the revocation together with a copy of the power of attorney with the Recorder.

PART 4 - Enduring Powers of Attorney

30.   Creation and effect of enduring powers of attorney

(1)  A power of attorney is an enduring power of attorney for the purposes of this Act if it is created –

(a) by deed containing words indicating an intention that the authority conferred is to be exercisable notwithstanding the donor's subsequent mental incapacity or in the event of the donor's subsequent mental incapacity; or

(b) by an instrument in accordance with form 3 , conferring on the attorney particular powers specified in it; or

(c) by an instrument in accordance with form 4 , conferring on the attorney powers to do all things that the donor may lawfully authorise an attorney to do.

(2)  A deed or instrument is not effective to create an enduring power of attorney unless –

(a) the donor understands the nature and effect of the deed or instrument; and

(b) there are at least 2 attesting witnesses to the deed or instrument neither of whom is a party to it nor a relation of a party to it and each of whom has witnessed it in the presence of the donor and each other; and

(c) the deed or instrument has endorsed on it, or annexed to it, a statement of acceptance in accordance with form 3 or 4 , or in a form to the same effect, executed by the person appointed to be the attorney.

(3)  For the purposes of subsection (2)(a) , a donor is taken to understand the nature and effect of a deed or instrument only if he or she understands the following matters:

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

(b) when the power begins;

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

(d) that the donor may revoke the enduring power of attorney at any time when he or she has the mental capacity to do so;

(e) that the power the donor has given continues even if the donor subsequently loses his or her mental capacity;

(f) that the donor is unable to oversee the use of the power if he or she subsequently loses mental capacity.

(4)  An act done by the attorney under a power conferred by an enduring power of attorney during a period of mental incapacity of the donor of the power is as effective as if the donor were competent and not subject to a mental incapacity.

31.   Scope of authority, &c., of attorney under enduring power of attorney

(1)  An enduring power of attorney –

(a) may confer general authority in accordance with subsection (2) on the attorney to act on the donor's behalf in respect of all or a specified part of the property and affairs of the donor or may confer on him or her authority to do specified acts on the donor's behalf; and

(b) may be expressed to operate only during such period as may be specified in the power of attorney –

and, in any such case, the authority may be conferred subject to conditions or restrictions.

(2)  Where an instrument is expressed to confer general authority on the attorney, it operates to confer, subject to any conditions or restrictions specified in the deed or instrument, authority to do on behalf of the donor any act which the donor can lawfully do by an attorney.

(3)  Unless there is a contrary intention expressed in the enduring power of attorney, an attorney may give away any property of the donor only if –

(a) the gift is –

(i) to a relation or close friend of the donor; and

(ii) of a seasonal nature or on the occasion of a special event (including, for example, a birth or marriage); or

(b) the gift is a donation of the nature that the donor made when the donor had mental capacity or that the donor might reasonably be expected to make –

and, in either case, the value of the gift is reasonable having regard to all the circumstances and, in particular, the donor's financial circumstances.

(4)  An attorney or a charity with which an attorney has a connection is not precluded from receiving a gift under subsection (3) .

(5)  The Board may –

(a) on the application of an attorney or of its own motion; and

(b) after a hearing in accordance with Division 1 of Part 10 of the Guardianship and Administration Act 1995  –

authorise the attorney to make a gift of any property of the donor to any person approved by the Board and for any purpose approved by the Board.

32.   Duties of attorney under enduring power of attorney

(1)  An attorney under an enduring power of attorney, during any period of mental incapacity of the donor –

(a) is taken to be a trustee of the property and affairs of the donor according to the tenor of the power; and

(b) must exercise his or her powers as attorney to protect the interests of the donor –

and, if he or she fails to do so, is liable to compensate the donor for any loss occasioned by the failure.

(2)  Subject to subsection (3) , an attorney under an enduring power of attorney is not competent to appoint another person to perform any functions or exercise any powers in his or her capacity as such.

(3)  Unless a contrary intention appears in an enduring power of attorney, an attorney may, by instrument in writing, appoint the Public Trustee to act as attorney in his or her place.

33.   Power of Board to make orders in respect of enduring power of attorney

(1)  The Board may –

(a) of its own motion; or

(b) on application by an attorney; or

(c) on application by or on behalf of a donor; or

(d) on application by any other person who the Board believes has a proper interest in the matter –

hold a hearing in accordance with Division 1 of Part 10 of the Guardianship and Administration Act 1995 to review an enduring power of attorney.

(2)  On the review, the Board may, by order –

(a) vary a term of, or a power conferred by, the enduring power of attorney; or

(b) appoint a substitute attorney; or

(c) appoint an administrator of the estate of the donor if he or she is over the age of 18 years; or

(d) declare that the donor did or did not have mental capacity to make a valid enduring power of attorney; or

(e) declare that the enduring power of attorney is invalid if the Board is satisfied that –

(i) the donor did not have the mental capacity to make it; or

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

(iii) it is invalid because the donor was induced to make it by dishonesty or undue influence or invalid for any other reason; or

(f) revoke the enduring power of attorney and, if the donor is over the age of 18 years and the Board thinks fit, appoint an administrator of his or her estate; or

(g) make such other order as to the exercise of the power, or the construction of its terms, as the Board thinks fit.

(3)  An appointment of a person as administrator under subsection (2)(f) has the same effect as if it had been made under Part 7 of the Guardianship and Administration Act 1995 .

(4)  When the Board considers it proper to do so by reason of urgency, the Board may suspend the operation of an enduring power of attorney and, on doing so, the Board may –

(a) appoint the Public Trustee or any other person as a substitute attorney; and

(b) make such other orders, and give such other directions, as to the exercise of the power as it thinks fit.

(5)  In the exercise of its powers under subsection (4)  –

(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as may be appropriate; and

(b) the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances.

(6)  An order under subsection (4)  –

(a) remains in effect for such period as the Board determines but not exceeding 28 days; and

(b) may be renewed but only once for a further period not exceeding 28 days.

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

(8)  On making an order under this section, the Board must forward a copy of the order to the Recorder who must register it.

34.   Requirements for applications under section 33

(1)  An application under section 33  –

(a) is to be in writing; and

(b) is to contain the information referred to in subsection (2) ; and

(c) is to be lodged with the registrar of the Board.

(2)  For the purposes of subsection (1) , the following information is required:

(a) the name and address of each of the following:

(i) the applicant;

(ii) the donor of the power;

(iii) the attorney;

(iv) any proposed substitute attorney;

(v) any interested parties to the application;

(b) in respect of each person referred to in paragraph (a) , the telephone number or other means of transmission referred to in subsection (3) ;

(c) details of the order, advice or direction required and the reasons for seeking it.

(3)  For the purposes of subsection (2) , a reference to a telephone number is taken to include a reference to any other means by which a copy of a document may be transmitted by facsimile process or any electronic or similar process approved by the Board.

(4)  An application under section 33 is to be supported by a declaration by the person making the application that all the information contained in the application is true and accurate, that it is not misleading and that no details relevant to the application have been omitted.

35.   Advice or directions as to enduring power of attorney

(1)  An attorney under an enduring power of attorney may apply for advice or direction by the Board on any matter relating to the scope of his or her appointment as such or the exercise of any power by the attorney under the enduring power of attorney.

(2)  An application under subsection (1) may be made in accordance with section 34 or informally.

(3)  The Board may require notice of an application under subsection (1) to be given to any person that the Board directs and may exercise its powers under this section without a hearing.

(4)  The Board may –

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

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

(c) vary the effect of the enduring power of attorney or make any other order that it could have made on an application under section 33 .

(5)  The Board of its own motion may direct, or offer advice to, an attorney in respect of any matter arising under the power of attorney.

(6)  Without limiting the powers conferred by this section, the Board may –

(a) require an attorney to lodge with the Board a copy of all records and accounts kept by the attorney of dealings and transactions made by him or her under the power; or

(b) require those records and accounts to be audited by an auditor appointed by the Board and require a copy of the report of the auditor to be furnished to the Board; or

(c) require the attorney to submit a plan of financial management to the Board.

(7)  An attorney who contravenes a direction given to him or her under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.

36.   Offence for false or misleading applications

If an application under section 33 or 35 contains a statement that is false or misleading in a material particular, the person making the application is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units.

37.   Contracting out prohibited

This Part applies to an enduring power of attorney notwithstanding any contract or arrangement made by the donor and the attorney to the contrary.

38.   Saving provision

Except as provided by this Part, nothing in this Part is taken to derogate from the law relating to powers of attorney.

PART 5 - Special case and Appeals to Supreme Court

39.   Special case for opinion of Court

(1)  Where a question of law arises in a hearing before the Board, the Board, of its own motion or on the application of any person to whom notice of the hearing has been given, may reserve the question in the form of a special case stated for the opinion of the Court.

(2)  Where a question of law has been reserved for the opinion of the Court under subsection (1) , the Board must not –

(a) determine the matter until the opinion of the Court has been given; or

(b) proceed in a manner or make a determination that is inconsistent with the opinion of the Court on the question of law.

40.   Appeals against decisions of Board

(1)  An appeal to the Court from a determination of the Board may be brought by the donor of a power, the attorney or a person –

(a) who appeared, or was entitled to appear, before the Board at the relevant hearing; or

(b) who, with the leave of the Board, would have been entitled to appear before the Board at the relevant hearing.

(2)  An appeal may be brought –

(a) on a question of law, as of right; or

(b) on any other question, only with the leave of the Court.

(3)  An appeal is to be instituted in accordance with the rules in force under the Supreme Court Civil Procedure Act 1932  –

(a) within 28 days after the day on which the determination was made; or

(b) within such further time as the Court may allow, whether before or after the expiration of that period.

(4)  The Court must hear and determine the appeal and may make an order –

(a) confirming the determination; or

(b) setting aside the determination and remitting the matter to the Board with directions; or

(c) substituting its own determination.

PART 6 - Foreign Powers of Attorney

41.   Application of Part

This Part extends to an instrument creating or revoking a power of attorney that was executed before the commencement of this Act and to documents executed under any such power before that commencement.

42.   Recognition of registration in other States and Territories

(1)  An instrument creating a power of attorney that is registered in another State or a Territory under a law that corresponds to this Act is taken to be registered in Tasmania for the purposes of this Act.

(2)  For the purposes of this section, the provisions for filing and noting of instruments of the Transfer of Land Act 1893 of Western Australia are taken to be a corresponding law.

43.   Registration of foreign powers of attorney

(1)  An instrument creating or revoking a power of attorney may be registered in Tasmania for the purposes of this Act, whether or not it was executed in accordance with the law of Tasmania.

(2)  If any such instrument is not executed in accordance with the law of Tasmania, it may be registered in Tasmania only if it was executed in accordance with the law of another State or a Territory or with the law of the place in which it was executed.

(3)  This section does not affect the operation of any law that prohibits the registration of an instrument unless the requisite amount of tax or duty has been paid in respect of the instrument.

44.   Proof of foreign execution or registration

(1)  For the purposes of this Part, a certificate of a legal practitioner that –

(a) an instrument creating a power of attorney is registered in another State or a Territory; or

(b) an instrument creating or revoking a power of attorney was executed in accordance with the law of a specified State or Territory or the law of the place of execution –

is evidence of that fact.

(2)  A legal practitioner who gives the certificate may be a legal practitioner in Australia or in the other place of execution.

(3)  A certificate referred to in subsection (1)(b) is not evidence of the capacity of the donor to create or revoke the power of attorney.

45.   Registration based on certified copies

(1)  The Recorder may register a power of attorney or other instrument that has been certified as mentioned in section 44 .

(2)  The Recorder may register a power of attorney or other instrument if a copy of it has been certified by an authority exercising functions similar to those of the Recorder under this Act to be a true copy of that power of attorney or other instrument.

46.   Registration of instruments of variation or revocation

Where a power of attorney is registered under section 43 or 45 , the Recorder may register an instrument varying or revoking the power of attorney.

47.   Enduring powers of attorney made outside Tasmania

(1)  The application of this Part extends to a power of attorney that has the same, or substantially the same, effect as an enduring power of attorney and is registered under this Part.

(2)  The Board may exercise its powers under Part 4 for the purpose of giving effect to any order, whether made by a court or not, that is in force under a law of another State or a Territory corresponding with this Act or the Guardianship and Administration Act 1995 .

48.   Powers of Board to require production

(1)  Where –

(a) an enduring power of attorney or other instrument relating to such a power is not required to be registered under this Act; and

(b) the power or instrument is in force under this Part –

the Board may –

(c) require a person who has the custody, possession or control of the relevant document or a copy of it to produce it to the Board; and

(d) retain an instrument, whether produced under this subsection or otherwise, until it is no longer required for action in connection with this or any other Act.

(2)  The Board may exercise its powers under this section if it appears that the powers conferred by the power of attorney may be exercised in Tasmania, whether or not they have been so exercised.

(3)  A person who refuses or neglects to produce a document as required under subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units.

PART 7 - Miscellaneous and Supplemental

49.   Power to have effect as deed

A power of attorney made in accordance with form 1, 2, 3 or 4 is as valid and effectual to all intents and purposes as if made by deed duly executed and acknowledged.

50.   Execution of power of attorney by direction of donor

(1)  Where an instrument creating a power of attorney is not executed personally by the donor, the instrument is taken to be validly executed if –

(a) it is executed by some other person in the presence of, and by the direction of, the donor; and

(b) the signature of that other person is made or acknowledged by the donor in the presence of 2 or more witnesses present at the same time; and

(c) those witnesses attest and subscribe the power of attorney in the presence of the donor –

but no form of attestation is necessary for that purpose.

(2)  Subsection (1) does not apply to an enduring power of attorney unless the Board, after a hearing in accordance with Division 1 of Part 10 of the Guardianship and Administration Act 1995 , declares by order that that subsection is to apply.

51.   Validity of payment by attorney under power without notice of death, &c.

(1)  A person making a payment or doing any act, in good faith, under a power of attorney is not liable in respect of the payment or act by reason that before the payment or act the donor –

(a) had died; or

(b) had become subject to a mental incapacity, bankrupt or insolvent; or

(c) had revoked the power –

if the fact of death, mental incapacity, bankruptcy, insolvency or revocation was not at the time of the payment or act known to the person making the payment or doing the act.

(2)  This section does not affect a right against the payee of any person interested in any money so paid and that person has the same remedy against the payee as he or she would have had against the person making the payment if the payment had not been made by him or her.

52.   Validity of acts done under power after registration of power and before registration of revocation

An act, deed or instrument done, executed or signed by the attorney of any power of attorney registered under this Act within the scope of the authority conferred –

(a) after the death, bankruptcy or insolvency of the donor, or the revocation of the power; and

(b) before the registration of the death, bankruptcy, insolvency or revocation under this Act –

is, in favour of a person who in good faith and without notice of the death, bankruptcy, insolvency or revocation has dealt with the attorney in the name of the donor, as valid and effectual as if the death, bankruptcy, insolvency or revocation had not taken place.

53.   Application of sections 51 and 52 to powers of attorney made under repealed Act

A notice of revocation or of the death, mental incapacity, bankruptcy or insolvency of the donor of a power of attorney may be made on an instrument lodged for registration under this Act notwithstanding that the power of attorney was made under the repealed Act.

54.   On registration, covenants for production to be inoperative

After a power of attorney has been registered under this Act, no legal proceeding may be brought or maintained on any covenant or agreement for the production of the power of attorney and, if any such proceeding is commenced, it is sufficient that the power has been registered under this Act.

55.   Confirmation of acts of attorney sufficient without production of power

Where a person confirms in writing any deed or other act purporting to be executed or done by the person by his or her attorney, the confirmation is taken to be proof of the authority of the attorney to execute the deed or do the act at the relevant time, without production or proof of any power of attorney.

56.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Without limiting subsection (1) , the regulations may require that an enduring power of attorney incorporate such information explaining the general effect of creating or accepting the power as may be specified in the regulations.

57.   Administration

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Primary Industries, Water and Environment; and

(b) the department responsible to the Minister for Primary Industries, Water and Environment in relation to the administration of this Act is the Department of Primary Industries, Water and Environment.

58.   Saving for powers of attorney registered under repealed Act

Where the registration of a power of attorney or a copy of an enduring power of attorney in accordance with the Registration of Deeds Act 1935 was in force immediately before the commencement of section 59, that registration is taken to continue in force notwithstanding the repeals effected by that section.

60.    Powers of Attorney Regulations 1997 rescinded

The Powers of Attorney Regulations 1997 are rescinded.

SCHEDULE 1 - Forms

Section 3(2)

Form 1

Form 2

Form 3

Form 4