The Victorian Government has introduced the Powers of Attorney Amendment Bill 2016 (Vic) into Parliament. The Bill makes changes to the scheme introduced under the Powers of Attorney Act 2014 that commenced operation on 1 September last year (2015). Attorney-General Pakula told the Victorian Legislative Assembly that the Bill aims to make a number of mostly technical amendments that have been drawn to the Government’s attention since the next Act commenced, and are necessary to improve the Act’s operation.
The Bill makes three major refinements to the principal Act.
The Bill aims to provide clarity by providing that an enduring power of attorney can be confined to financial matters or personal matters or to matters specified in the instrument of appointment. Currently, section 22 of the act allows a person to authorise an attorney to “'do anything on behalf of the person that a person can lawfully do by an attorney”, to make decisions in relation to personal or financial matters or both. These options are also reflected in the form. In his second reading speech, the Attorney-General said:
“The 'do anything' provision was included as a catch-all provision to ensure that there were no gaps in a principal's choice of powers. It replicated a similar provision in the instruments act. However, the availability of an alternative option to give an attorney authority for both personal and financial matters presents an unclear and confusing choice for principals and their advisers as to which of the two broad sets of powers to select. Because the 'do anything' power would include authority to act in personal and financial matters, the bill will remove the alternative option for a principal to confer power to undertake both personal and financial matters.”
Currently, the Act allows the appointment of an alternative attorney who can step in if the primary attorney resigns from their duties, but the rules are unclear. Amendments to the Act will make it clear that more than one alternative attorney can be appointed and that an alternative attorney can be appointed for more than one attorney.
This will also apply to supportive attorneys, a role created in the principal Act to support the person who is the subject of the power of attorney and provide protection against the abuse of the power.
The Bill also addresses the revocation of previous powers of attorney or guardianship. Under the current Act, the making of a new enduring power of attorney will revoke an earlier power of attorney made under the Act. However, this does not apply to powers made under the previous Instruments Act 1958 or the Guardianship and Administration Act 1986.
The Bill amends the Act to provide that an old enduring power of guardianship or an old enduring power of attorney is automatically revoked when a new enduring power of attorney is created under the Act, unless it is specified otherwise.
Previous powers of attorney or guardianship will also be able to be revoked without being replaced under the new procedure introduced in the current Act.
The Bill is currently being considered by the Legislative Assembly.
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Powers of Attorney Amendment Bill 2016 (Vic), Explanatory Memorandum & Second Reading Speech - available from TimeBase's LawOne service
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