In brief - Disputes to be referred to Guardianship Tribunal
instead of Supreme Court
New forms are to replace the current prescribed form, one or
more substitute attorneys may be appointed and the Guardianship
Tribunal will have the jurisdiction to determine disputes related
to the revocation of a power of attorney.
Amendments to Powers of Attorney Act 2003 passed in
Some of the more substantial changes are detailed below.
Current prescribed form for power of attorney to be
The prescribed form for a power of attorney will be removed from
the Act and relocated in the Schedule of the Regulations. Two forms
will replace the current prescribed form: one form dealing with
general power of attorney and the other dealing with an enduring
power of attorney. The forms themselves will include more guidance
for the attorneys on their roles and duties as an attorney and be
easier to read, contain more useful information and have more
options than the old form.
Principal to have right to appoint substitute attorneys
Previously, there was some question as to whether the
appointment of a substitute attorney in a power of attorney was
effective. The amendments to the Act (section 45A) state that a
principal has the right to appoint one or more substitute attorneys
in a power of attorney.
This amendment will not affect the validity of an appointment of
a substitute attorney before these amendments.
Change in arrangements related to joint attorneys
section 46 of the Act states that where a power of attorney
appoints two or more persons to act as attorney (either jointly or
severally), where the office of one of those positions is vacated
for any reason, the power of attorney is terminated.
The addition of section 46(1) will give the principal the right
to specify otherwise in the power of attorney itself. This will
mean that the power of attorney may continue to be effective if the
principal elects this in the power of attorney.
The amendments to section 46 do not apply to any power of
attorney that has been executed before the date of these
Guardianship Tribunal to have jurisdiction to determine
Currently, disputes relating to the revocation of a power of
attorney would ordinarily be referred to the Supreme Court.
Following the amendments to the Act, the Guardianship Tribunal
will have the jurisdiction to determine disputes of this kind,
resulting in less delay and expense for the parties involved.
How long can you keep using the old power of attorney
It is expected that the new powers of attorney prescribed forms
for the Powers of Attorney Regulation will be available shortly and
will commence operation on 13 September 2013. It is proposed to
allow the current prescribed form to be used up until 1 March 2014.
It is expected that any power of attorney using the old prescribed
form, provided it is executed before the changeover date, should
still be able to be registered after the changeover date until 1
March 2014. It is expected that Land and Property information will
refuse to register an enduring power of attorney created after 1
March 2014 on the old prescribed form.
We will need to examine the transitional provisions and the new
powers of attorney regulations carefully when they issue to
ascertain on what date you should cease using the old prescribed
form, to ensure that such an old form can still be registered after
the changeover date.
Because of the high costs, royal commissions should only be convened to address issues of substantial public importance.
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