Powers of Attorney Amendment Act 2016

Powers of Attorney Amendment Act2016

No. 64 of 2016

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

3Principal Act

Part 2—Amendments relating to powersofattorney

Division 1—Amendment of Powers of AttorneyAct2014

4Enduring power of attorney

5Appointment of alternative attorneys

6Later inconsistent enduring power of attorney

7Resignation when principal has decision making capacity

8Ending of attorney's power where more than one attorney

9Duties of attorney

10Information power

11Appointment of alternative supportive attorneys

12Who is entitled to notice?

13Who can apply for a rehearing?

14Heading to Part 10 substituted

15Division 3 of Part 10 substituted

Division 2—Amendment of Privacy and DataProtection Act 2014

16Capacity to consent or make a request or exercise right of access

Part 3—Repeal of amending Act

17Repeal of amending Act

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Endnotes

1General information

SectionPage

Victoria

SectionPage

Powers of Attorney Amendment Act2016[†]

No. 64 of 2016

[Assented to 15 November 2016]

Powers of Attorney Amendment Act2016
No. 64 of 2016

The Parliament of Victoriaenacts:

Part 3—Repeal of amending Act

Powers of Attorney Amendment Act2016
No. 64 of 2016

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Powers of Attorney Act2014—

(i)to further provide for the making of an enduring power of attorney; and

(ii)to further provide for the appointment of alternative attorneys and alternative supportive attorneys; and

(iii)tofurther provide for the revocation of an enduring power of attorney; and

(iv)to further provide for the ending of an attorney's power and the operation of anenduring power of attorney; and

(v)to provide for other minor and related matters; and

(b)to makea minoramendment to the Privacy and Data Protection Act 2014.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 May 2017, it comes into operation on that day.

3Principal Act

In this Act, the Powers of Attorney Act 2014 is called the Principal Act.

Part 2—Amendments relating to powersofattorney

Division 1—Amendment of Powers of AttorneyAct2014

4Enduring power of attorney

For section 22(2) of the Principal Act substitute—

"(2) Without limiting subsection (1), a person may confine what is authorised to be done by an attorney—

(a)to personal matters only; or

(b)to financial matters only; or

(c)to matters specified in the instrument of appointment.".

5Appointment of alternative attorneys

For section 31(1) of the Principal Act substitute—

"(1)Subject to subsection (1A), a principal under an enduring power of attorney may appoint—

(a)one or more persons as alternative attorneys for an attorney appointed under the power of attorney; or

(b)a person as an alternative attorney in respect of more than one attorney appointed under the power of attorney.

(1A)A principal must not appoint a person under subsection (1) unless the person is eligible to be appointed as an attorney under section28.".

6Later inconsistent enduring power of attorney

(1)In the heading to section 55 of the Principal Act,for "Later inconsistent" substitute "Revocation by later".

(2)In section 55(1) of the Principal Act omit
", so far as the later enduring power of attorney isinconsistent".

7Resignation when principal has decision making capacity

In section 56(2) of the Principal Act, for
"is it gives power to the attorney or alternative attorney" substitute "as it gives power to the attorney or alternative attorney for that matter".

8Ending of attorney's power where more than one attorney

(1)After section 62(3) of the Principal Act insert—

"(3A)Despite subsection (3), if the ending of anypower of a majority attorney under an enduring power of attorney results in the remaining majority attorneys being no longerable to exercise that power as majority attorneys, then the remaining attorneys must exercise that power jointly.".

(2)In section 62(4) of the Principal Act, for "or (3)" substitute ", (3) or (3A)".

9Duties of attorney

In section 63(1)(d) of the Principal Act, for "power so authorises" substitute "attorney is authorised by the power, the principal or VCAT".

10Information power

In the note at the foot of section87(2) of the Principal Act, for "the Information Privacy Act2000" substitute "the Privacy and Data Protection Act 2014".

11Appointment of alternative supportive attorneys

For section 93(1) of the Principal Act substitute—

"(1)Subject to subsection (1A), a principal under a supportive attorney appointment may appoint—

(a)one or more persons as alternative supportive attorneys for a supportive attorney appointed under the appointment; or

(b)a person as an alternative supportive attorney in respect of more than one supportive attorney appointed under theappointment.

(1A)A principal must not appoint a person under subsection (1) unless the person is eligible to be appointed as a supportive attorney under section91.".

12Who is entitled to notice?

In section 123(4) of the Principal Act, for "thethe" substitute "the".

13Who can apply for a rehearing?

(1)For section 130(1)(b) of the Principal Act substitute—

"(b)if the person was given notice of the hearing of the application at first instance but was not a party to the hearing of the application, with the leave of VCAT; or

(c)if the person was not given notice of the hearing of the application at first instance and the person has a special interest in the affairs of the principal, with the leave of VCAT; or

(d)if the person is the Public Advocate, without the leave of VCAT.".

(2)Section 130(2) of the Principal Act is repealed.

14Heading to Part 10 substituted

For the heading to Part 10 of the Principal Act substitute—

"Part 10—Savings and transitional provisions".

15Division 3 of Part 10 substituted

For Division 3 of Part 10 of the Principal Act substitute—

"Division 3—Powers of Attorney Amendment Act 2016

149Definition

In this Division, enduring power of attorney (2014) means a power of attorney made under section 22 as in force immediately before the commencement of section 4 of the Powers of Attorney Amendment Act 2016.

150Interpretation of Legislation Act 1984 not limited

Nothing in this Division limits the operation of the Interpretation of Legislation Act1984.

151Enduring power of attorney (2014)

(1)Despite the commencement of section 4 ofthe Powers of Attorney Amendment Act2016, an enduring power of attorney (2014)continues in existence for so long as that power of attorney is in force on and after that commencement.

(2)On and from the commencement of section 6 of the Powers of Attorney Amendment Act2016, section 55 as amended by section6 of that Act applies to an enduring power of attorney (2014).

(3)Despite the commencement of section 8 ofthe Powers of Attorney Amendment Act2016, section 62 of this Act as in force immediately before the commencement of section 8 continues to apply to an enduring power of attorney (2014).

152Old enduring power of attorney

Despite section 142(2), on and from the commencement of section 6 of the Powers of Attorney Amendment Act 2016—

(a)Divisions 1 and 2 of Part 5apply to anold enduring power of attorney that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act; and

(b)Division 3 of Part 5 as amended by section 6 applies to an old enduring power of attorney that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act.

153Old enduring power of guardianship

Despite section 143(2), on and from the commencement of section 6 of the Powers of Attorney Amendment Act 2016—

(a)Divisions 1 and 2 of Part 5apply to anold enduring power of guardianship that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act; and

(b)Division 3 of Part 5 as amended by section 6 of that Act applies to an old enduring power of guardianship that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act.

154Applications for VCAT rehearing

Section 130 as amended by section 13 of thePowers of Attorney Amendment Act2016 applies to an application made under section130 that has been made but notdetermined immediately before that amendment.".

Division 2—Amendment of Privacy and DataProtection Act 2014

16Capacity to consent or make a request or exercise right of access

For section 28(2)(a) of the Privacy and Data Protection Act 2014substitute—

"(a)by—

(i)the individual personally, except if the individual is a child who is incapable of making the request; or

(ii)a supportive attorney acting under a supportive attorney appointment, within the meaning of the Powers of Attorney Act 2014; and".

Part 3—Repeal of amending Act

17Repeal of amending Act

This Act is repealed on 1 May 2018.

Note

The repeal of this Act does not affect the continuing operation ofthe amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

Powers of Attorney Amendment Act2016
No. 64 of 2016

Endnotes

1General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

[†] Minister's second reading speech—

Legislative Assembly: 8 June 2016

Legislative Council: 1 September 2016

The long title for the Bill for this Act was "A Bill for an Act to amend thePowers of Attorney Act 2014 and the Privacy and Data Protection Act2014 and for other purposes."