Queensland: Powers of Attorney Act 1998 (Qld)

Powers of Attorney Act 1998 An Act consolidating, amending and reforming the law about general powers of attorney and enduring powers of attorney and providing for advance health directives, and for other purposes Chapter 1 Preliminary 1 Short title This Act may be cited as the Powers of Attorney Act 1998. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Dictionary The dictionary in schedule 3 defines particular words used in this Act. 4 Act binds all persons This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. 5 General overview (1) An attorney is a person who is authorised to make particular decisions and do particular other things for another person (the principal). (2) After the commencement of this Act, principals may authorise attorneys by— (a) general powers of attorney, enduring powers of attorney or advance health directives; or (b) powers of attorney under the common law. (3) In addition to replacing the statutory provisions for powers of attorney and enduring powers of attorney, this Act introduces advance health directives and statutory health attorneys. Note— The Property Law Act 1974, part 9 (Powers of attorney) was repealed by section 182. However, see section 163 (Powers of attorney under Property Law Act 1974) for a transitional provision. (4) An advance health directive is a document containing directions for a principal's future health care and special health care and may authorise an attorney to do particular things for the principal in relation to health care. Note— Advance health directives are dealt with in chapter 3. (5) A statutory health attorney is the person authorised by this Act to do particular things for a principal in particular circumstances in relation to health care. Note— See section 62 (Statutory health attorney). Also, see the Guardianship and Administration Act 2000, section 66(5) (Adult with impaired capacity—order of priority in dealing with health matter). 6 Scope of Act Except where otherwise provided, this Act applies only to documents made, whether under this Act or otherwise, after the commencement of this Act. Note— A general power of attorney, or enduring power of attorney, made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be a general power of attorney, or enduring power of attorney, made under this Act—section 163. 6A Relationship with Guardianship and Administration Act 2000 (1) This Act is to be read in conjunction with the Guardianship and Administration Act 2000 which provides a scheme by which— (a) the tribunal may appoint a guardian for an adult with impaired capacity for personal matters to make particular decisions and do particular other things for the adult in relation to the matters; and Note— Personal matters do not include special personal matters or special health matters—schedule 2, section 2. (b) the tribunal may appoint an administrator for an adult with impaired capacity for financial matters to make particular decisions and do particular other things for the adult in relation to the matters; and (c) the tribunal may consent to the withholding or withdrawal of a life-sustaining measure and to particular special health care. Note— However, the tribunal may not consent to electroconvulsive therapy or a non-ablative neurosurgical procedure—Guardianship and Administration Act 2000, section 68(1). (2) The Guardianship and Administration Act 2000 also provides a scheme for health care and special health care for adults with impaired capacity for the matter concerned, including an order of priority for dealing with health care and special health care. Note— See the Guardianship and Administration Act 2000, sections 65 and 66. (3) The Guardianship and Administration Act 2000 also provides for the public advocate. (4) If there is an inconsistency between this Act and the Guardianship and Administration Act 2000, the Guardianship and Administration Act 2000 prevails. 6B Relationship with Public Guardian Act 2014 This Act is to be read in conjunction with the Public Guardian Act 2014 which provides for the public guardian and the community visitor (adult) program. Chapter 1A Principles 6C General principles The principles (the general principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act or an enduring document— General principles 1 Presumption of capacity An adult is presumed to have capacity for a matter. 2 Same human rights and fundamental freedoms (1) An adult's inherent dignity and worth, and equal and inalienable rights, must be recognised and taken into account. (2) The rights of all adults to the same human rights and fundamental freedoms, regardless of a particular adult's capacity, must be recognised and taken into account. (3) The principles on which an adult's human rights and fundamental freedoms are based, and that should inform the way those rights and freedoms are taken into account, include— (a) respect for inherent dignity and worth, individual autonomy (including the freedom to make one's own choices) and independence of persons; and (b) non-discrimination; and (c) full and effective participation and inclusion in society, including performing roles valued by society; and (d) respect for difference and acceptance of persons with impaired capacity as part of human diversity and humanity; and (e) equality of opportunity; and (f) accessibility; and (g) equality between all persons regardless of gender. 3 Empowering adult to exercise human rights and fundamental freedoms The importance of the following matters must be taken into account— (a) empowering an adult to exercise the adult's human rights and fundamental freedoms; (b) encouraging and supporting an adult— (i) to perform social roles valued in society; and (ii) to live a life in the general community and to take part in activities enjoyed by the community; and (iii) to achieve maximum physical, social, emotional and intellectual potential and to become as self-reliant as practicable; (c) an adult's right to participate to the greatest extent practicable in the development of policies, programs and services for people with impaired capacity for a matter. 4 Maintenance of adult's existing supportive relationships (1) The importance of maintaining an adult's existing supportive relationships must be taken into account. (2) Maintaining an adult's existing supportive relationships may, for example, involve consultation with— (a) the adult, to find out who are the members of the adult's support network; and (b) any persons who have an existing supportive relationship with the adult; and (c) any members of the adult's support network who are making decisions for the adult on an informal basis. (3) The role of families, carers and other significant persons in an adult's life to support the adult to make decisions should be acknowledged and respected. 5 Maintenance of adult's cultural and linguistic environment and values (1) The importance of maintaining an adult's cultural and linguistic environment and set of values, including religious beliefs, must be taken into account. (2) Without limiting subsection (1), for an adult who is an Aboriginal person or a Torres Strait Islander, the importance of maintaining the adult's Aboriginal or Torres Strait Islander cultural and linguistic environment and set of values, including Aboriginal tradition or Island custom, must be taken into account. 6 Respect for privacy (1) An adult's privacy must be taken into account and respected. (2) An adult's personal information, including health information, must be protected on the same basis as other people's personal information is protected. 7 Liberty and security (1) An adult's right to liberty and security on an equal basis with others must be taken into account. (2) An adult should not be deprived of the adult's liberty except in accordance with the law. 8 Maximising an adult's participation in decision-making (1) An adult's right to participate, to the greatest extent practicable, in decisions affecting the adult's life must be recognised and taken into account. (2) An adult must be given the support and access to information necessary to enable the adult to make or participate in decisions affecting the adult's life. (3) An adult must be given the support necessary to enable the adult to communicate the adult's decisions. (4) To the greatest extent practicable, a person or other entity, in exercising power for a matter for an adult, must seek the adult's views, wishes and preferences. (5) An adult's views, wishes and preferences may be expressed orally, in writing or in another way, including, for example, by conduct. (6) An adult is not to be treated as unable to make a decision about a matter unless all practicable steps have been taken to provide the adult with the support and access to information necessary to make and communicate a decision. 9 Performance of functions and exercise of powers A person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must do so— (a) in a way that promotes and safeguards the adult's rights, interests and opportunities; and (b) in the way that is least restrictive of the adult's rights, interests and opportunities. 10 Structured decision-making (1) In applying general principle 9, a person or other entity in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must adopt the approach set out in subsections (2) to (5). (2) First, the person or other entity must— (a) recognise and preserve, to the greatest extent practicable, the adult's right to make the adult's own decision; and (b) if possible, support the adult to make a decision. (3) Second, the person or other entity must recognise and take into account any views, wishes and preferences expressed or demonstrated by the adult. (4) Third, if the adult's views, wishes and preferences can not be determined, the person or other entity must use the principle of substituted judgement so that if, from the adult's views, wishes and preferences, expressed or demonstrated when the adult had capacity, it is reasonably practicable to work out what the adult's views, wishes and preferences would be, the person or other entity must recognise and take into account what the person or other entity considers the adult's views, wishes and preferences would be. (5) Fourth, once the person or other entity has recognised and taken into account the matters mentioned in subsections (2) to (4), the person or other entity may perform the function or exercise the power. 6D Health care principles The principles (the health care principles) set out below must be applied by a person or other entity that performs a function or exercises a power under this Act or an enduring document for a health matter— Health care principles 1 Application of general principles A person or other entity that performs a function or exercises a power under this Act, or an enduring document, for a health matter in relation to an adult, must also apply the general principles. 2 Same human rights and fundamental freedoms In applying general principle 2 to a health matter— (a) the principle of non-discrimination requires that all adults be offered appropriate health care, including preventative care, without regard to a particular adult's capacity; and (b) any consent to, or refusal of, health care for an adult must take into account the principles of respect for inherent dignity and worth, individual autonomy (including the freedom to make one's own choices) and independence of persons. 3 Performance of functions and exercise of powers In applying general principles 9 and 10 to a health matter, a person or other entity, in performing a function or exercising a power under this Act in relation to an adult, or under an enduring document for an adult, must take into account— (a) information given by the adult's health provider; and (b) if the adult has a medical condition— (i) the nature of the adult's medical condition; and (ii) the adult's prognosis; and (c) if particular health care is proposed, any alternative health care that is available; and (d) the nature and degree of any significant risks associated with the proposed health care or any alternative health care; and (e) whether the proposed health care can be postponed because a better health care option may become available within a reasonable time or the adult is likely to become capable of making the adult's own decision about the health care; and (f) the consequences for the adult if the proposed health care is not carried out; and (g) a consideration of the benefits versus the burdens of the proposed health care; and (h) the effect of the proposed health care on the adult's dignity and autonomy. 4 Substituted judgement For applying general principle 10(4) to a health matter, the views and wishes of an adult expressed when the adult had capacity may also be expressed— (a) in an advance health directive; or (b) by a consent to, or refusal of, health care given at a time when the adult had capacity to make decisions about the health care. Chapter 2 Powers of attorney other than enduring powers of attorney Part 1 Introduction 7 Application of ch 2 (1) This chapter does not apply to enduring powers of attorney. (2) Except where otherwise provided, this chapter applies to all other powers of attorney made, whether under this Act or otherwise, after the commencement of this Act. Note— A general power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be a general power of attorney made under this Act—section 163. For provisions applying to attorneys, see chapter 5 (Exercising power for a principal), part 1 (Provisions applying to attorneys). 8 Powers of attorney By a general power of attorney made under this Act, a person (principal) may— (a) authorise 1 or more other persons (attorneys) to do for the principal anything (other than exercise power for a personal matter) that the principal can lawfully do by an attorney; and Note— Only an attorney under an enduring power of attorney may exercise power for a personal matter for a principal. (b) provide terms or information about exercising the power. 9 When attorney's power exercisable (1) A principal may specify in a power of attorney a time when, circumstance in which, or occasion on which, the power is exercisable. (2) However, if the power of attorney does not specify a time when, circumstance in which, or occasion on which, the power is exercisable, the power becomes exercisable once the power of attorney is made. 10 Powers of attorney given as security (1) A power of attorney given as security is a power of attorney (other than an enduring power of attorney)— (a) whether made under this Act or otherwise and whether made before or after the commencement of this Act; and (b) given by a principal as security for a proprietary interest of the attorney or the performance of an obligation owed to the attorney; and (c) that states it is irrevocable. (2) Despite chapter 2, part 3, a power of attorney given as security is incapable of revocation except with the consent of the attorney while— (a) the attorney has the proprietary interest, or persons deriving title to the interest under the attorney have the proprietary interest, secured by the power of attorney; or (b) the obligation, the performance of which is secured by the power of attorney, remains undischarged. Note— Also, revocation by attorney provisions dealing with revocation because of impaired capacity, bankruptcy or insolvency or death of an attorney (sections 22 to 24) do not apply to powers of attorney given as security. (3) A power of attorney given as security for a proprietary interest may be given to— (a) the person entitled to the interest and the persons deriving title under the person to the interest; or (b) a representative of a person mentioned in paragraph (a) who may be a specified officer, or the holder of a specified office, by reference to the title of the office concerned. Note— office includes position—see the Acts Interpretation Act 1954, schedule 1. (4) The persons deriving title are taken to be attorneys of the power of attorney for all purposes. (5) Subsection (4) does not affect a right in the power of attorney to appoint substitute attorneys. (6) The power of a registered proprietor under the Land Title Act 1994 to revoke a power of attorney is subject to this section. Part 2 Making a power of attorney other than an enduring power of attorney 11 Form of general power of attorney made under Act A general power of attorney made under this Act must be in the approved form. Note— An approved form is a form approved by the chief executive under section 161—schedule 3 (Dictionary). Strict compliance with the form is not necessary and substantial compliance is sufficient—Acts Interpretation Act 1954, section 48A (Compliance with forms). 12 Execution of powers of attorney (1) This section does not apply to a power of attorney created by and contained in another instrument, for example, a mortgage or lease, that is signed by, or by direction of, the principal. Notes— 1 See the Property Law Act 1974, part 6, division 1 in relation to a document containing a power of attorney that takes effect as a deed. 2 See the Property Law Act 1974, section 46A in relation to a power of attorney given by an individual under a deed. (2) An instrument creating a power of attorney must be signed by, or by direction and in the presence of, the principal. Note— See also part 3A. (3) This section does not affect— (a) a requirement in or having effect under another Act about witnessing of instruments creating powers of attorney; or (b) the rules about the execution of instruments by corporations. 13 Appointment of 1 or more attorneys (1) By a general power of attorney made under this Act, a principal may— (a) appoint 1 attorney, or more than 1 attorney, being joint or several, or joint and several, attorneys; and (b) appoint as attorney— (i) a person by name; or (ii) a specified officer, or the holder of a specified office, by reference to the title of the office concerned. Note— office includes position—see the Acts Interpretation Act 1954, schedule 1. (2) If a specified officer or the holder of a specified office is appointed as an attorney— (a) the appointment does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the appointment was made ceases to be the officer or the holder of the office; and (b) the power may be exercised by the person for the time being occupying or acting in the office concerned. 14 Proof of power of attorney (1) A power of attorney may be proved by a copy of the power of attorney certified under this section. (2) Each page, other than the last page, of the copy must be certified to the effect that the copy is a true and complete copy of the corresponding page of the original. (3) The last page of the copy must be certified to the effect that the copy is a true and complete copy of the original. (4) Certification must be by 1 of the following persons— (a) the principal; (b) a justice; Note— justice means a justice of the peace—see the Acts Interpretation Act 1954, schedule 1. (c) a commissioner for declarations; (d) a notary public; (e) a lawyer; Note— lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007—see the Acts Interpretation Act 1954, schedule 1. (f) a trustee company under the Trustee Companies Act 1968; (g) a stockbroker. (5) If a copy of a power of attorney has been certified under this section, the power of attorney may also be proved by a copy, certified under this section, of the certified copy. (6) This section does not prevent a power of attorney being proved in another way. (7) This section also applies to a power of attorney made before the commencement of this Act. Note— See also section 7 (Application of ch 2). Part 3 Revoking a power of attorney other than an enduring power of attorney Division 1 Introduction 15 Relationship with other law This part does not limit the events by which, or circumstances in which, a power of attorney is revoked orally or in another way or terminated by implication or operation of law. Division 2 Revocation by principal 16 Advice of revocation If a power of attorney is revoked under this division, the principal must take reasonable steps— (a) to advise all attorneys affected by the revocation; and (b) for a power of attorney registered in the power of attorney register—to deregister it. 17 Written revocation (1) If a power of attorney is or becomes revocable, it may be revoked by an instrument in the approved form executed in the same way as the power of attorney. (2) Subsection (1) does not affect the rules about the execution of instruments by corporations. (3) This section also applies to a power of attorney made before the commencement of this Act. Note— See also section 7 (Application of ch 2). 18 Impaired capacity (1) If a principal becomes a person who has impaired capacity, the power of attorney is revoked. Note— However, for a power of attorney given as security, see section 10. (2) However, if a principal becomes incommunicate, the court may by order confirm that, from the date of the order, all or part of the power of attorney remains in full force and effect if the court is satisfied that the confirmation is for the benefit of the principal. (3) For this section, a person becomes incommunicate if the person becomes incapable of communicating decisions about the person's financial, property or legal affairs in some way. 19 Death When a principal dies, the power of attorney is revoked. Division 3 Revocation according to terms 20 According to terms A power of attorney is revoked according to its terms. Examples— 1 If a power of attorney is expressed to operate for or during a specified period, it is revoked at the end of the period. 2 If a power of attorney is expressed to operate for a specific purpose, it is revoked when the purpose is achieved. Division 4 Revocation by attorney 21 Resignation If an attorney resigns, the power of attorney is revoked to the extent it gives power to the attorney. Note— An attorney may resign by signed notice to the principal—section 72(1). 22 Impaired capacity If an attorney becomes a person who has impaired capacity, the power of attorney is revoked to the extent it gives power to the attorney. Note— However, for a power of attorney given as security, see section 10. 23 Bankruptcy or insolvency (1) If an individual attorney becomes bankrupt or insolvent or takes advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction, the power of attorney is revoked to the extent it gives power to the attorney. Note— However, for a power of attorney given as security, see section 10. (2) If a corporate attorney is wound up or dissolved or a receiver (other than a receiver for a limited purpose) or administrator is appointed of the attorney, the power of attorney is revoked to the extent it gives power to the attorney. Example— X is an attorney under a power of attorney that is not given as security. X becomes bankrupt. Therefore, the power of attorney is revoked to the extent it gives power to X. If X was a joint and several attorney with Y, the power of attorney is only revoked to the extent it gives power to X. Y can continue to exercise the power. The same applies if X was a joint attorney with Y because of section 59A. If X was not a joint and several attorney and the power of attorney gives power to an alternative or successive attorney, the alternative or next attorney may then exercise power. If none of these apply, no-one is able to exercise power under the power of attorney. 24 Death When an attorney dies, the power of attorney is revoked to the extent it gives power to the attorney. Note— See section 59A (Effect of power ending). Part 3A General powers of attorney for businesses 24A Definitions for part In this part— accepted method, for electronically signing a general power of attorney, means— (a) a method prescribed under section 24G; or (b) if no method is prescribed, and subject to a regulation prescribing under section 24G a method that is not an accepted method for electronically signing a general power of attorney, a method that— (i) identifies the signatory for the document and the signatory's intention in relation to the contents of the document; and (ii) is either— (A) as reliable as appropriate for the purpose for which the document is signed, having regard to all the circumstances, including any relevant agreement; or (B) proven in fact to have fulfilled the functions described in subparagraph (i), by itself or together with further evidence. business— (a) means— (i) a corporation; or (ii) a partnership under the Partnership Act 1891, section 5; or (iii) another unincorporated association; but (b) does not include an enterprise carried on by a sole trader. corporation includes— (a) a corporation under the Corporations Act, section 57A; and (b) a corporation sole; and (c) a statutory corporation. counterpart, for a document, see section 24B. electronically sign, a document, means sign the document using an accepted method. general power of attorney means a general power of attorney made under this Act. information includes information in the form of data, text or images. make, in relation to a document, includes execute. physical document means a document other than an electronic document. seal, of a corporation, includes a common seal of the corporation. sign, a document, means— (a) for a physical document—physically sign the document; or (b) for an electronic document—electronically sign the document. statutory corporation means an entity established, incorporated or registered under an Act of the Commonwealth or a State, that is not a corporation registered under the Corporations Act. witness, a document, includes witness the signing of the document. 24B What is a counterpart for a document (1) A counterpart, for a document, is a copy of the document that includes the entire contents of the document. (2) Despite subsection (1), a counterpart need not include— (a) the signatures of the other persons who are to sign the document; or (b) if a common seal is fixed to the document—the seal. 24C Application of part (1) This part applies in relation to a general power of attorney for a business. (2) A reference in this part to a general power of attorney is taken to include a reference to a document revoking a general power of attorney. (3) If a provision of this part is inconsistent with any other provision of this Act, the provision of this part prevails to the extent of the inconsistency. 24D Relationship with other laws (1) If there is an inconsistency between this part and any other law in relation to a general power of attorney, this part prevails to the extent of the inconsistency. (2) Despite subsection (1), this part does not affect the way in which general powers of attorney are executed under the Land Title Act 1994 or the Land Act 1994. 24E No sealing required A general power of attorney for a business may be made even if it is not sealed or stated to be sealed. 24F General power of attorney may be in form of electronic document and electronically signed A general power of attorney for a business may be in the form of an electronic document and may be electronically signed if it is executed under this part. 24G Accepted method for electronically signing general power of attorney A regulation may prescribe an accepted method, or what is not an accepted method, for electronically signing a general power of attorney for a business. 24H Execution by corporation (1) A corporation may execute a general power of attorney, without using a common seal, if the document is signed by— (a) 2 directors of the corporation; or (b) 1 director and 1 secretary of the corporation; or (c) for a proprietary company that has a sole director—that director, if— (i) the director is also the sole company secretary; or (ii) the company does not have a company secretary; or (d) a lawfully authorised agent or attorney of the corporation, whether or not the agent or attorney is appointed under seal. (2) A corporation with a common seal may execute a general power of attorney if the seal is fixed to the document and the fixing of the seal is witnessed by— (a) 2 directors of the corporation; or (b) 1 director and 1 secretary of the corporation; or (c) for a proprietary company that has a sole director—that director, if— (i) the director is also the sole company secretary; or (ii) the company does not have a company secretary. (3) For subsection (2), the fixing of a common seal to a document is taken to have been witnessed by a person mentioned in paragraph (a), (b) or (c) of that subsection if— (a) the person observes the fixing of the seal by audio visual link; and (b) the person signs the document; and (c) the document includes a statement that the person observed the fixing of the seal by audio visual link. (4) Also, for a statutory corporation, the general power of attorney may be signed by a person, or in a way, authorised by the Act under which the corporation is established, incorporated or registered. (5) Further, for a corporation that is not incorporated under an Australian law, the general power of attorney may be signed by a person, or in a way, authorised by the law of the place in which the corporation is incorporated. (6) A general power of attorney may be signed under this section whether or not in the presence of a witness. (7) If a person signs a general power of attorney for a corporation as a lawfully authorised agent or attorney for the corporation, the person must— (a) sign the general power of attorney in a way that indicates the person is signing as a lawfully authorised agent or attorney; and (b) if the person is a corporation—sign the general power of attorney under this section. (8) This section does not limit the ways in which a general power of attorney for a corporation may be executed by the corporation. (9) In this section— attorney, for a corporation, means a person acting under the authority of a power of attorney given by the corporation under a deed, a general power of attorney or another law. audio visual link means facilities that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places and includes videoconferencing. director, of a corporation, means a member of the board of directors, council or other governing body of the corporation. secretary, of a corporation, means the clerk, secretary or other permanent officer of the corporation. 24I Execution by partnership or unincorporated association (1) An individual may execute a general power of attorney on behalf of a partnership or unincorporated association by signing the general power of attorney. (2) An individual may sign a general power of attorney under subsection (1) whether or not in the presence of a witness. (3) If an individual signs a general power of attorney under subsection (1), the individual must sign the general power of attorney in a way that indicates the person is executing the general power of attorney on behalf of the partnership or unincorporated association. (4) This section does not limit or otherwise affect another law or instrument that requires or permits a general power of attorney executed on behalf of a partnership or unincorporated association to be executed in a particular way. Example— This section does not affect an instrument that requires or permits a general power of attorney executed on behalf of a partnership to be executed by a stated number of partners. 24J Requirement for signatory A person signing a general power of attorney for a business must include the following information on the general power of attorney near the person's signature— (a) the person's full name; (b) the person's office or designation in relation to the business. 24K Signing counterpart or true copy (1) This section applies if 2 or more persons are to sign a general power of attorney for a business. (2) A person signing the general power of attorney for the business may sign a counterpart or true copy of the general power of attorney. (3) For subsection (2), if the counterpart or true copy is electronically signed by a person, the counterpart or true copy need not include any material included in the general power of attorney about the method used for electronically signing the general power of attorney. 24L Lodgement or deposit of general power of attorney in registry (1) This section applies to a general power of attorney that is proposed to be lodged or deposited in a registry for a purpose. (2) If the general power of attorney is made in counterparts, each counterpart must be lodged or deposited in the registry for the purpose. (3) If the general power of attorney or a counterpart of the general power of attorney is in the form of an electronic document, a printed copy of the general power of attorney or counterpart certified under subsection (4) must be lodged or deposited in the registry for the purpose. (4) For subsection (3), the printed copy must be certified as a true copy of the original general power of attorney or counterpart— (a) on the last page of the printed copy; and (b) by 1 of the following persons— (i) 1 of the signatories; (ii) a lawyer; (iii) a justice; (iv) a commissioner for declarations; (v) a notary public; (vi) a trustee company under the Trustee Companies Act 1968; (vii) a stockbroker. (5) In this section— registry means— (a) the land registry; or (b) the water allocations register under the Water Act 2000. Part 4 Other provisions 25 Registration of powers of attorney and instruments revoking powers (1) A power of attorney may be registered. (2) An instrument revoking a power of attorney may be registered. (3) Subject to another Act or a contrary intention in the power of attorney, if the power of attorney has been registered under an Act, it does not cease to authorise the attorney to do for the principal anything relevant to the purpose for which it was registered until an instrument revoking the power of attorney has been registered. (4) This section also applies to a power of attorney made before the commencement of this Act. Note— See also section 7 (Application of ch 2). 26 Offence to dishonestly induce the making or revocation of power of attorney (1) A person must not dishonestly induce a person to make or revoke a power of attorney. Maximum penalty—200 penalty units. (2) This section also applies to a power of attorney made before the commencement of this Act. Note— See also section 7 (Application of ch 2). Chapter 3 Enduring documents Part 1 Application and interpretation 27 Application of ch 3 Except where otherwise provided, this chapter applies only to enduring documents. 28 Meaning of enduring document An enduring document is an enduring power of attorney or an advance health directive. Note— An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163. 29 Meaning of eligible attorney (1) An eligible attorney, for a matter under an enduring power of attorney, means— (a) a person who— (i) has capacity for the matter and is at least 18 years; and (ii) is not, and has not been within the previous 3 years, a paid carer for the principal; and Note— See schedule 3 for the definition paid carer. (iii) is not a health provider for the principal; and Note— See schedule 3 for the definition health provider. (iv) is not a service provider for a residential service where the principal is a resident; and (v) if the person would be given power for a financial matter—is not bankrupt or taking advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction; or (b) for a financial matter only— (i) the public trustee; or (ii) a trustee company under the Trustee Companies Act 1968; or (c) for a personal matter only—the public guardian. (2) An eligible attorney, for a matter under an advance health directive, means— (a) a person who has capacity for the matter who is— (i) at least 18 years; and (ii) not a paid carer, or health provider, for the principal; and Note— See schedule 3 for the definitions paid carer and health provider. (iii) not a service provider for a residential service where the principal is a resident; or (b) the public guardian. 30 Meaning of eligible signer (1) An eligible signer, to sign a document for a principal, is a person who— (a) is at least 18 years; and (b) is not the witness for the document; and (c) is not an attorney of the principal. (2) To avoid any doubt, it is declared that a person is not excluded from being an eligible signer merely because the person is an attorney's employee who signs the document while acting in the ordinary course of employment. (3) In this section— attorney, for a document, means— (a) a person who is an attorney of the principal whether under the document or otherwise; or (b) if the document is all or part of an enduring document—a person who will be an attorney of the principal under the enduring document. 31 Meaning of eligible witness (1) An eligible witness, for a document, is a person who— (a) except for a document revoking an advance health directive—is a justice, commissioner for declarations, notary public or lawyer; and Note— justice means a justice of the peace—see the Acts Interpretation Act 1954, schedule 1. lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007—see the Acts Interpretation Act 1954, schedule 1. (b) is not the person signing the document for the principal; and (c) is not an attorney of the principal; and (d) is not a relation of the principal or a relation of an attorney of the principal; and (e) if the document gives power for a personal matter—is not a paid carer or health provider of the principal; and (f) for an advance health directive—is not a beneficiary under the principal's will. (2) To avoid any doubt, it is declared that a person is not excluded from being an eligible witness merely because the person is an attorney's employee who is the witness for the document while acting in the ordinary course of employment. (3) In this section— attorney, for a document, means— (a) a person who is an attorney of the principal whether under the document or otherwise; or (b) if the document is all or part of an enduring document—a person who will be an attorney of the principal under the enduring document. Part 2 Enduring power of attorney provisions 32 Enduring powers of attorney (1) By an enduring power of attorney, an adult (principal) may— (a) authorise 1 or more other persons who are eligible attorneys (attorneys) to do anything in relation to 1 or more financial matters or personal matters for the principal that the principal could lawfully do by an attorney if the adult had capacity for the matter when the power is exercised; and Note— personal matters includes health matters but does not include special personal matters or special health matters—schedule 2, section 2. (b) provide terms or information about exercising the power. (2) An enduring power of attorney giving power for a matter is not revoked by the principal becoming a person with impaired capacity for the matter. Note— An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163. (3) To remove any doubt, it is declared that an enduring power of attorney may be made by an adult principal who is outside the State. 33 When attorney's power exercisable (1) A principal may specify in an enduring power of attorney a time when, circumstance in which, or occasion on which, a power for a financial matter is exercisable. (2) However, if the enduring power of attorney does not specify a time when, circumstance in which, or occasion on which, power for a financial matter becomes exercisable, the power becomes exercisable once the enduring power of attorney is made. (3) Also, if— (a) a time when, circumstance in which, or occasion on which, power for a financial matter is exercisable is specified; and (b) before the specified time, circumstance or occasion, the principal has impaired capacity for the matter; power for the matter is exercisable during any or every period the principal has the impaired capacity. (4) Power for a personal matter under the enduring power of attorney is exercisable during any or every period the principal has impaired capacity for the matter and not otherwise. Note— However, the priority of an attorney's power for a health matter is decided by the Guardianship and Administration Act 2000, section 66 (Adult with impaired capacity—order of priority in dealing with health matter). See, in particular, section 66(4). (5) If an attorney's power for a matter depends on the principal having impaired capacity for a matter, a person dealing with the attorney may ask for evidence, for example, a medical certificate, to establish that the principal has the impaired capacity. 34 Recognition of enduring power of attorney made in other jurisdictions If an enduring power of attorney is made in another jurisdiction and complies with the requirements in the other jurisdiction, then, to the extent the powers it gives could validly have been given by an enduring power of attorney made under this Act, the enduring power of attorney must be treated as if it were an enduring power of attorney made under, and in compliance with, this Act. Part 3 Advance health directive provisions 35 Advance health directives (1) By an advance health directive, an adult principal may— (a) give directions, about health matters and special health matters, for his or her future health care; and (b) give information about his or her directions; and (c) appoint 1 or more persons who are eligible attorneys to exercise power for a health matter for the principal in the event the directions prove inadequate; and Note— Note this does not include a special health matter. (d) provide terms or information about exercising the power. (2) Without limiting subsection (1), by an advance health directive the principal may give a direction— (a) consenting, in the circumstances specified, to particular future health care of the principal when necessary and despite objection by the principal when the health care is provided; and (b) requiring, in the circumstances specified, a life-sustaining measure to be withheld or withdrawn; and (c) authorising an attorney to physically restrain, move or manage the principal, or have the principal physically restrained, moved or managed, for the purpose of health care when necessary and despite objection by the principal when the restraint, movement or management is provided. (3) A direction in an advance health directive has priority over a general or specific power for health matters given to any attorney. (4) An advance health directive is not revoked by the principal becoming a person with impaired capacity. (5) To remove any doubt, it is declared that an advance health directive may be made by an adult principal who is outside the State. 36 Operation of advance health directive (1) A direction in an advance health directive— (a) operates only while the principal has impaired capacity for the matter covered by the direction; and (b) is as effective as if— (i) the principal gave the direction when decisions about the matter needed to be made; and (ii) the principal then had capacity for the matter. Note— See also section 101 (No less protection than if adult gave health consent). (2) A direction to withhold or withdraw a life-sustaining measure can not operate unless— (a) 1 of the following applies— (i) the principal has a terminal illness or condition that is incurable or irreversible and as a result of which, in the opinion of a doctor treating the principal and another doctor, the principal may reasonably be expected to die within 1 year; (ii) the principal is in a persistent vegetative state, that is, the principal has a condition involving severe and irreversible brain damage which, however, allows some or all of the principal's vital bodily functions to continue, including, for example, heart beat or breathing; (iii) the principal is permanently unconscious, that is, the principal has a condition involving brain damage so severe that there is no reasonable prospect of the principal regaining consciousness; Note— This is sometimes referred to as 'a coma'. (iv) the principal has an illness or injury of such severity that there is no reasonable prospect that the principal will recover to the extent that the principal's life can be sustained without the continued application of life-sustaining measures; and (b) for a direction to withhold or withdraw artificial nutrition or artificial hydration—the commencement or continuation of the measure would be inconsistent with good medical practice; and (c) the principal has no reasonable prospect of regaining capacity for health matters. Note— life-sustaining measure is defined in schedule 2, section 5A. (3) An attorney's power for a health matter under an advance health directive is exercisable during any or every period the principal has impaired capacity for the matter and not otherwise. Note— However, the priority of an attorney's power for a health matter is decided by the Guardianship and Administration Act 2000, section 66 (Adult with impaired capacity—order of priority in dealing with health matter). See, in particular, section 66(4). (4) While power for a health matter is exercisable under an advance health directive, the directive gives the attorney for the matter power to do, for the principal, anything in relation to the matter the principal could lawfully do if the principal had capacity for the matter. (5) However, the power given is subject to the terms of the advance health directive and this Act. (6) A person dealing with the attorney may ask for evidence, for example, a medical certificate, to establish that the principal has impaired capacity for the matter. 37 Act does not authorise euthanasia or affect particular provisions of Criminal Code To avoid any doubt, it is declared that nothing in this Act— (a) authorises, justifies or excuses killing a person; or (b) affects the Criminal Code, section 284 or chapter 28. Note— Criminal Code— 284 Consent to death immaterial Consent by a person to the causing of the person's own death does not affect the criminal responsibility of any person by whom such death is caused. Chapter 28 (Homicide—suicide—concealment of birth), including— 296 Acceleration of death A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person. 311 Aiding suicide Any person who— (a) procures another to kill himself or herself; or (b) counsels another to kill himself or herself and thereby induces the other person to do so; or (c) aids another in killing himself or herself; is guilty of a crime, and is liable to imprisonment for life. 37A Act's relationship with Forensic Disability Act (1) For a forensic disability client under the Forensic Disability Act 2011 who has given a direction about the person's health care or special health care, whether by giving a direction in an advance health directive or otherwise, an interpretation of that Act that is consistent with this Act and the direction is to be preferred to any other meaning. (2) However, the Forensic Disability Act 2011 prevails in the case of inconsistency. 38 Act's relationship with Mental Health Act (1) For an involuntary patient under the Mental Health Act 2016 who has given a direction about the person's health care or special health care, whether by giving a direction in an advance health directive or otherwise, an interpretation of that Act that is consistent with this Act and the direction is to be preferred to any other meaning. (2) However, the Mental Health Act 2016 prevails in the case of inconsistency. 39 Common law not affected This Act does not affect common law recognition of instructions about health care given by an adult that are not given in an advance health directive. 40 Recognition of enduring health care document made in other States If a document prescribed by regulation is made in another State and complies with the requirements for the document in the other State, then, to the extent the document's provisions could have been validly included in an advance health directive made under this Act, the document must be treated as if it were an advance health directive made under, and in compliance with, this Act. Part 4 Making an enduring document 41 Principal's capacity to make an enduring power of attorney (1) A principal has capacity to make an enduring power of attorney only if the principal— (a) is capable of making the enduring power of attorney freely and voluntarily; and (b) understands the nature and effect of the enduring power of attorney. Note— Under the general principles, an adult is presumed to have capacity. See section 6C, general principle 1. (2) Understanding the nature and effect of the enduring power of attorney includes understanding the following matters— (a) the principal may, in the 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) 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) the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power; (e) the power the principal has given continues even if the principal becomes a person who has impaired capacity; (f) at any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power. Note— If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood these matters. (3) For this section, schedule 3, definition capacity does not apply. 42 Principal's capacity to make an advance health directive (1) A principal has capacity to make an advance health directive, to the extent it does not give power to an attorney, only if the principal— (a) understands the nature and effect of the advance health directive; and (b) is capable of making the advance health directive freely and voluntarily. Note— Under the general principles, an adult is presumed to have capacity. See section 6C, general principle 1. (2) Understanding the nature and effect of the advance health directive includes understanding the following matters— (a) the nature and likely effects of each direction in the advance health directive; (b) a direction operates only while the principal has impaired capacity for the matter covered by the direction; (c) the principal may revoke a direction at any time the principal has capacity for the matter covered by the direction; (d) at any time the principal is not capable of revoking a direction, the principal is unable to effectively oversee the implementation of the direction. Note— If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered the principal understood these matters. (3) A principal has capacity to make an advance health directive, to the extent it gives power to an attorney, only if the principal has the capacity necessary to make an enduring power of attorney giving the same power. Note— See section 41 in relation to the capacity of a principal to make an enduring power of attorney. (4) For this section, schedule 3, definition capacity does not apply. 43 Appointment of 1 or more eligible attorneys (1) Only a person who is an eligible attorney may be appointed as an attorney by an enduring document. Note— See section 29 (Meaning of eligible attorney). (2) A principal may appoint 1 or more of the following— (a) a single attorney for a matter or all matters; (b) different attorneys for different matters; (c) a person to act as an attorney for a matter or all matters in a circumstance stated in the enduring document; (d) alternative attorneys for a matter or all matters so power is given to a particular attorney only in a circumstance stated in the enduring document; (e) successive attorneys for a matter or all matters so power is given to a particular attorney only when power given to a previous attorney ends; (f) joint or several, or joint and several, attorneys for a matter or all matters; (g) 2 or more joint attorneys for a matter or all matters, being a number less than the total number of attorneys for the matter or all matters. (3) However, a principal may not appoint more than 4 joint attorneys for a matter under an enduring power of attorney. 44 Formal requirements (1) An enduring power of attorney must be in an approved form. Note— An approved form is a form approved by the chief executive under section 161—schedule 3 (Dictionary). (2) An advance health directive must be written and may be in the approved form. (3) An enduring document must— (a) be signed— (i) by the principal; or (ii) if the principal instructs—for the principal and in the principal's presence, by an eligible signer; and Note— See section 30 (Meaning of eligible signer). (b) be signed and dated by an eligible witness. Note— See section 31 (Meaning of eligible witness). It is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood the necessary matters. For a power of attorney—see section 41 and for an advance health directive—see section 42. (4) If an enduring document is signed by the principal, it must include a certificate signed by the witness stating the principal— (a) signed the enduring document in the witness's presence; and (b) at the time, appeared to the witness to have the capacity necessary to make the enduring document. (5) If an enduring document is signed by a person for the principal, it must include a certificate signed by the witness stating— (a) the principal, in the witness's presence, instructed the person to sign the enduring document for the principal; and (b) the person signed it in the presence of the principal and witness; and (c) the principal, at the time, appeared to the witness to have the capacity necessary to make the enduring document. (6) An advance health directive must also include a certificate signed and dated by a doctor or nurse practitioner mentioned in subsection (7) stating the principal, at the time of making the advance health directive, appeared to the doctor or nurse practitioner to have the capacity necessary to make it. (7) The doctor or nurse practitioner must not be— (a) the person witnessing the advance health directive; or (b) the person signing the advance health directive for the principal; or (c) an attorney of the principal; or (d) a relation of the principal or a relation of an attorney of the principal; or (e) a beneficiary under the principal's will. (8) An enduring document is effective in relation to an attorney only if the attorney has accepted the appointment by signing the enduring document. (9) In this section— nurse practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the nursing profession, other than as a student, whose registration is endorsed as being qualified to practise as a nurse practitioner. 45 Proof of enduring document (1) An enduring document may be proved by a copy of the enduring document certified under this section. Note— An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163. (2) The copy must be certified to the effect that it is a true and complete copy of the original. (3) Certification must be by 1 of the following persons— (a) the principal; (b) a justice; Note— justice means a justice of the peace—see the Acts Interpretation Act 1954, schedule 1. (c) a commissioner for declarations; (d) a notary public; (e) a lawyer; Note— lawyer means an Australian lawyer within the meaning of the Legal Profession Act 2007—see the Acts Interpretation Act 1954, schedule 1. (f) a trustee company under the Trustee Companies Act 1968; (g) a stockbroker. (4) If a copy of an enduring document has been certified under this section, the enduring document may also be proved by a copy, certified under this section, of the certified copy. (5) This section does not prevent an enduring document being proved in another way. Part 5 Revoking an enduring document Division 1 Revocation by principal 46 Advice of revocation If an enduring document is revoked under this division, the principal must take reasonable steps— (a) to advise all attorneys under the enduring document of its revocation; and (b) for an enduring power of attorney registered under the Land Title Act 1994—to deregister it. Note— An enduring power of attorney made under the Property Law Act 1974 and of force and effect before the commencement of section 163 is taken to be an enduring power of attorney made under this Act—section 163. 47 Principal's capacity for written revocation of power of attorney (1) A principal may revoke an enduring power of attorney in writing only if the principal has the capacity necessary to make an enduring power of attorney giving the same power. Note— See section 41 (Principal's capacity to