Powers of Attorney Act 1934
An Act to consolidate and amend the Acts relating to powers of attorney
[Royal Assent 27 November 1934]
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 I - [Part I Heading inserted by No. 87 of 1987, s. 4 ]Preliminary
[Section 1 Substituted by No. 87 of 1987, s. 4 ]This Act may be cited as the Powers of Attorney Act 1934 .
[Section 2 Inserted by No. 87 of 1987, s. 4 ]In this Act, unless the contrary intention appears –[Section 3 Repealed by No. 87 of 1987, s. 4 ]. . . . . . . . [Section 4 Repealed by No. 87 of 1987, s. 4 ]. . . . . . . . [Section 5 Added by No. 68 of 1962, s. 39 ]. . . . . . . .the Court means the Supreme Court;enduring power of attorney means an enduring power of attorney created pursuant to section 11A .
PART II - [Part II Heading inserted by No. 87 of 1987, s. 4 ]Powers of Attorney
Division 1 - Registration of powers of attorney, &c.
6. Acts under power invalid until power registered
[Section 6 Substituted by No. 87 of 1987, s. 4 ]An act, deed, or instrument done, executed, or signed under a power of attorney by the donee of the power is not valid unless –(a) that power of attorney is first registered under the Registration of Deeds Act 1935 as an instrument; or(b) in the case of an enduring power of attorney that is subject to an order of the Court made under section 11E (3) , a copy of that order under the seal of the Court is so registered.
7. Death, &c., of donor of power may be registered
[Section 7 Substituted by No. 87 of 1987, s. 4 ](1) Where a power of attorney has been registered as mentioned in section 6 , the death, bankruptcy, or insolvency of the donor or the revocation of the power of attorney by the donor shall be registered as provided by subsection (2) .(2) For the purposes of subsection (1) , there shall be registered under the Registration of Deeds Act 1935 as an instrument –(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;(b) an instrument of revocation of a power of attorney;(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 Court under section 11E (3) , a copy of that order under the seal of the Court.
Division 2 - [Part II, Div. 2 Heading inserted by No. 87 of 1987, s. 4 ]Effect of powers of attorney[Section 8 Repealed by No. 57 of 1975, s. 4 ]. . . . . . . .
9. Execution under power of attorney
(1) The donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.(2) This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act.
10. Effect of power of attorney, for value, made absolutely irrevocable
[Section 10 Amended by No. 87 of 1987, s. 5 ]If a power of attorney, given for valuable consideration is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser –(a) the power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, mental incapacity, bankruptcy, or insolvency of the donor of the power;(b) any act done at any time by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, mental incapacity, bankruptcy, or insolvency of the donor of the power, had not been done or happened; and(c) neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor of the power, without the concurrence of the donee of the power or of the death, mental incapacity, bankruptcy, or insolvency of the donor of the power.
11. Effect of power of attorney
[Section 11 Amended by No. 87 of 1987, s. 6 ](1) 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 time therein specified, not exceeding one year from the date of the instrument, then, in favour of a purchaser –(a) the power shall not be revoked, for and during that fixed time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, mental incapacity, bankruptcy, or insolvency of the donor of the power;(b) any act done within that fixed time, by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, mental incapacity, bankruptcy, or insolvency of the donor of the power, had not been done or happened; and(c) neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice, either during or after that fixed time, of any thing done by the donor of the power during that fixed time without the concurrence of the donee of the power, or of the death, mental incapacity, bankruptcy, or insolvency of the donor of the power within that fixed time.(2) This section applies only to powers of attorney created by instruments executed after the thirty-first day of December 1883.
PART III - Enduring Powers of Attorney
11A. Creation and effect of enduring powers of attorney
[Section 11A Inserted by No. 87 of 1987, s. 7 ](1) A power of attorney is an enduring power of attorney for the purposes of this Act if it is created 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.(2) A deed is not effective to create an enduring power of attorney unless –(a) there are at least 2 attesting witnesses to the deed neither of whom is a party to the deed nor a relation of a party to the deed and who have witnessed the deed in the presence of the donor and each other; and(b) the deed has endorsed on it, or annexed to it, a statement of acceptance in the form set out in Schedule 1 , or in a form to the same effect, executed by the person appointed to be the donee of the power.(3) An act done by the donee of an enduring power of attorney in pursuance of the power during a period of mental incapacity of the donor of the power is as effective as if the donor were competent and not mentally incapacitated.
11B. Scope of authority, &c., of donee under enduring power of attorney
[Section 11B Inserted by No. 87 of 1987, s. 7 ](1) An enduring power of attorney –and, in any such case, the authority may be conferred subject to conditions and restrictions.(a) may confer general authority in accordance with subsection (2) on the donee to act on the donor's behalf in relation to all or a specified part of the property and affairs of the donor or may confer on him 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 deed –(2) Where an instrument is expressed to confer general authority on the donee, it operates to confer, subject to any conditions or restrictions contained in the deed, authority to do on behalf of the donor any act which the donor can lawfully do by an attorney.
11C. Duties of donee of enduring power of attorney
[Section 11C Inserted by No. 87 of 1987, s. 7 ](1) A donee of an enduring power of attorney shall, during any period of mental incapacity of the donor –and, if he fails to do so, is liable to compensate the donor for loss occasioned by the failure.(a) be deemed to be a trustee of the property and affairs of the donor according to the tenor of the power; and(b) exercise his powers as attorney to protect the interests of the donor –(2) A donee of an enduring power of attorney is not competent to appoint another person to perform any of his functions or exercise any of his powers in his capacity as such.
11D. Effect of committee proceedings on enduring power of attorney
[Section 11D Inserted by No. 87 of 1987, s. 7 ](1) Notwithstanding anything contained in the Mental Health Act 1963 , an enduring power of attorney is not revoked on the donor of the power becoming subject to Part VI of that Act and the powers and duties of a committee appointed under that Part in relation to the estates of patients do not apply to, or in relation to, the estate of the donor so long as the enduring power of attorney is in force.(2) Notwithstanding subsection (1) , any action taken by a committee pursuant to Part VI of the Mental Health Act 1963 before he has notice of an enduring power of attorney is valid and effectual.
11E. Power of Supreme Court to revoke enduring power of attorney
[Section 11E Inserted by No. 87 of 1987, s. 7 ](1) The Public Trustee or a person who has, in the opinion of the Court, a proper interest in the matter may at any time during a period of mental incapacity of the donor of an enduring power of attorney, apply to the Court for an order –(a) requiring the donee of the power to file in the Court and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in pursuance of the power;(b) requiring those records and accounts to be audited by an auditor appointed by the Court and requiring a copy of the report of the auditor to be furnished to the Court and the applicant; or(c) revoking or varying the terms of the power or appointing a substitute donee of the power.(2) The donee of an enduring power of attorney may, at any time during the period of mental incapacity of the donor of the power, apply to the Court –(a) for an order referred to in subsection (1) (c) ; or(b) for advice and direction as to matters connected with the exercise of the power or the construction of its terms.(3) The Court may, on an application under this section –(a) make an order referred to in subsection (1) (c) ; or(b) make such other order (declaratory or otherwise) as to the exercise of the power, or the construction of its terms, as the Court thinks fit.(4) An order under this section may be made subject to such terms and conditions as the Court thinks fit.
11F. Contracting out prohibited
[Section 11F Inserted by No. 87 of 1987, s. 7 ]The provisions of this Part apply and have effect to, and in relation to, an enduring power of attorney notwithstanding any contract or arrangement made by the donor and the donee of the power to the contrary.
[Section 11G Inserted by No. 87 of 1987, s. 7 ]Except as expressly provided by this Part, nothing in this Part shall be construed so as to derogate from the law relating to powers of attorney.
PART IV - [Part IV Heading inserted by No. 87 of 1987, s. 7 ]Miscellaneous and Supplemental
11H. Execution of power of attorney by direction of donor
[Section 11H Inserted by No. 87 of 1987, s. 7 ](1) Where an instrument creating a power of attorney is not executed personally by the donor, the instrument shall be taken to be validly executed if –but no form of attestation is necessary for that purpose.(a) it is executed by some other person in the presence of, and by the direction of, the donor;(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 –(2) Subsection (1) does not apply to, or in relation to, an enduring power of attorney.
12. Payment by attorney under power without notice of death, &c., good
[Section 12 Amended by 25 Geo. V No. 78 ](1) [Section 12 Subsection (1) amended by No. 87 of 1987, s. 8 ]Any person making or doing any payment or act, in good faith, in pursuance of a power of attorney, shall not be liable in respect of the payment or act by reason that before the payment or act the donor of the power had died, or become mentally incapable, bankrupt, or insolvent, or 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 or doing the same.(2) This section shall not affect any right against the payee of any person interested in any money so paid; and that person shall have the like remedy against the payee as he would have had against the payer if the payment had not been made by him.(3) This section applies only to payments and acts made and done after the thirty-first day of December 1883.
13. Acts done under power after registration of power, and before registration of revocation, valid as to parties without notice
Every act, deed, or instrument done, executed, or signed by the donee of any power of attorney registered under this Act, within the scope of the authority thereby conferred, after the death, bankruptcy, or insolvency of the donor, or the revocation of the power, and before the registration of such death, bankruptcy, insolvency, or revocation under this Act, shall, in favour of any person who in good faith and without notice of such death, bankruptcy, insolvency, or revocation has dealt with such donee in the name of the donor, be as valid and effectual as if such death, bankruptcy, insolvency, or revocation had not taken place.
14. On registration covenants for production to be inoperative
[Section 14 Amended by 25 Geo. V No. 78 ]After any power of attorney has been registered under this Act, no proceeding at law or in equity shall be brought or maintained upon any covenant or agreement for the production of such power of attorney; and, if any proceeding is commenced, it shall be a sufficient answer thereto that such power has been registered under this Act.
15. Confirmation of acts of attorney sufficient without production of power
In case any person has heretofore confirmed or hereafter confirms in writing any deed or other act purporting to be executed or done by such person by his attorney, such confirmation shall be conclusive evidence of the sufficiency at law and in equity of the authority of such attorney to execute or do such deed or act at the time of the executing or doing thereof, without production or proof of any power of attorney, anything in this Act contained to the contrary notwithstanding.
16. Act to extend to bankruptcies, &c.
This Act shall extend and apply to every bankruptcy or insolvency whatsoever, whether the same takes place under any Act of the legislature of this State or under any other law affecting property in this State.[Section 17 Repealed by No. 57 of 1975, s. 4 ]. . . . . . . .
[Section 18 Amended by 25 Geo. V No. 78 ](1) [Section 18 Subsection (1) amended by No. 87 of 1987, s. 9 ]The Governor may make regulations for the purposes of this Act.(2) [Section 18 Subsection (2) amended by No. 87 of 1987, s. 9 ]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.
SCHEDULE 1 - Form of Acceptance of Enduring Power of Attorney[Schedule 1 Substituted by No. 87 of 1987, s. 10 ]
SCHEDULE 2[Schedule 2 Repealed by No. 57 of 1975, s. 4 ]