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Chapter 10 - Enduring powers of attorney

23 Jun 2017 - 11:03 | Version 15 |

Contributed by Nick O'Neill and Carmelle Peisah and current to 28 February 2017

10.1 Introduction

In 1925 in Tasmania a woman gave her nephew a power of attorney to empower him to manage her affairs "if and whenever and so long as I shall be incapacitated by illness from attending to business". Three months later, the woman was certified "insane" and hospitalised. The nephew managed the woman's estate and financial affairs until she died in 1928. Nicholls CJ held that the nephew did not have any authority to manage his aunt's financial affairs while she was "insane". (1). He relied upon an English Court of Appeal case in which it was stated that the authority of an attorney ended when the person who gave them power of attorney became insane.(2)

It probably was the case that many powers of attorney were made where the capacity of the person to make a power of attorney was in doubt, and the power of attorney continued to be exercised by the attorney, even though the appointor had clearly lost capacity. Nevertheless, it was not until the 1980s that legislation was enacted to provide for enduring powers of attorney. The legislation allowed a person to make a power of attorney that continued to operate and for the attorney to continue to manage their financial affairs after they lost the capacity to manage them themselves.

Since the 1980s many enduring powers of attorney have been made by adults with a diagnosis of dementia and others in anticipation of them losing their capacity to manage their financial affairs. While most of these enduring powers of attorney will have been made while the person was still capable, and most attorneys will have carried out their responsibilities as an attorney both competently and ethically, some will have been made when the maker was already incapable and some attorneys will have acted contrary to the interests of the person who appointed them. Also, many attorneys do not know what their responsibilities as attorneys are.

These matters have been addressed in legislation that has been revised or enacted since 1998. With the exception of South Australia, State guardianship tribunals have been given the task of reviewing the making and the operation of enduring powers of attorney. In the Australian Capital Territory the ACT Civil and Administrative Tribunal (ACAT) has been given the task of reviewing the making and the operation of enduring powers of attorney. All these tribunals have also been given the power to revoke or vary enduring powers of attorney and to call attorneys to account. In South Australia this supervisory role is held by the Supreme Court.

In the Northern Territory, since 17 March 2014, enduring powers of attorney have been replaced by advance personal plans made under the Advance Personal Planning Act (NT). Those plans not only replace enduring powers of attorney, they also allow the maker of such a plan to appoint a decision maker for care and welfare matters, including health care (personal decisions). In particular the Act allows adults to make what are commonly known as advance care directives; but are called advance personal plans in the Northern Territory. Those parts of the Act that deal with substitute decision-making in relation to financial matters are dealt with in this chapter. Other aspects of the Act are dealt with in Chapters 9, 12, 13 and 14.

This chapter deals with the capacity of adults to make powers of attorney, aspects of the responsibilities of attorneys when acting as attorneys for incapable people and the role of the guardianship tribunals and the Supreme Courts in reviewing the making of enduring powers of attorney and the carrying out of their functions by attorneys appointed under enduring powers of attorney.

10.2 What is an enduring power of attorney?

An enduring power of attorney is a form of agency through which a competent adult appoints another person, or the relevant Public or State Trustee or a trustee corporation, as their agent to do certain things of a financial nature that the maker of the power of attorney has a legal right to do themselves. Like all agents, an attorney under an enduring power of attorney has no more powers to act than the person who appointed them. However, they are given the power by legislation to continue to act as their appointor's attorney even after their appointor has lost their capacity either to appoint an attorney or to rescind the appointment of an attorney they have already appointed.

While powers of attorney developed in the common law, as well as in civil law countries, recently in Australia, the scope or subject-matter reach of powers of attorney, capacity to make them, the procedures for making them, the obligations of attorneys to those who empowered them and the role of tribunals and courts dealing with issues and problems arising in relation to the making and use of them have all been part of legislative reforms. (3)

The most recent example has been the Powers of Attorney Act 2014 (Vic), which came into force on 1 September 2015. It states, in fewer words, that the maker of an enduring power of attorney (in Victoria) may authorise their attorney, by an enduring power of attorney, to do anything on behalf of them as the maker, that they, as a maker, can authorise an attorney to do lawfully on their behalf. (4) While this is a wonderfully circular definition, the relevant section goes on to state that a person may make an enduring power of attorney for personal or financial matters or both. (5) The Act defines a financial matter that an enduring attorney may handle on behalf of a maker of an enduring power of attorney as:

[A]ny matter relating to the principal's [maker's] financial or property affairs, and includes any legal matter that relates to the financial or property affairs of the [maker].(6)

And then goes on to give a list of examples as follows:
  1. making money available to the maker for their personal expenditure;
  2. paying expenses for the maker and any for their dependants relating to the maintenance and accommodation of the maker and any dependants, including purchasing an interest in, or making a contribution to an establishment to accommodate the maker or any dependants of the maker or otherwise making payments in relation to such property;
  3. paying any of the maker's debts, including any fees and expenses to which an attorney is legally entitled;
  4. receiving and recovering money payable to the maker;
  5. carrying on any trade or business of the maker;
  6. performing any contracts entered into by the maker;
  7. discharging any mortgage over the maker's property;
  8. paying rates, taxes and insurance premiums or other outgoings for the maker's property;
  9. insuring the maker or the maker's property
  10. otherwise preserving or improving the maker's property;
  11. making investments for the maker;
  12. continuing investments of the maker, including taking up rights to issues of new shares, or options for new shares to which the maker becomes entitled by the maker's existing shareholding;
  13. undertaking any real estate transaction for the maker;
  14. dealing with land for the maker;
  15. undertaking a beneficial transaction for the maker involving the use of the maker's property as security for an obligation, including taking out a loan on behalf of the maker or giving a guarantee on behalf of the maker;
  16. withdrawing money from or depositing money into an account of the maker with a financial institution. (7)

There is another non-exclusive list of financial matters in the Powers of Attorney Act 1998 (Qld) (8) and a list of examples of property matters that an attorney under a power of attorney may deal with in the Powers of Attorney Act 2006 (ACT)(9) It may become apparent in future that there are other matters relating to a maker's financial or property affairs that enduring attorneys are empowered to deal with as a result of their appointment. It is also possible that the list of examples may be limited by court or tribunal decisions in the future; although far less likely.

The Victorian Act, having provided that makers of enduring powers of attorney are able to authorise enduring attorneys to deal with any matter relating to the maker's personal or lifestyle affairs, including any legal matter that relates to their personal or lifestyle affairs goes on to provide a list of examples of personal matters.(10). The list comprises:
  1. where and with whom the maker lives;
  2. persons with whom the maker associates;
  3. whether the maker works and, if so, the kind and place of work and employer;
  4. whether the maker undertakes education or training, the kind of education or training and the place where it takes place;
  5. daily living issues such as diet and dress;
  6. health care matters, including matters provided for in Part 4A of the Guardianship and Administration Act 1986 (Vic).(11)
It should be noted that this non-exclusive list includes a restatement of some of the decision-making powers of a plenary guardian.(12)

Importantly the Victorian Act also provides a list of matters that a maker, under an enduring power of attorney, cannot authorise an attorney under that power to deal with, namely:
  1. make or revoke a will for the principal (maker);
  2. make or revoke an enduring power of attorney for the maker;
  3. vote on the principal's behalf in an election for the State or the Commonwealth or another State or a Territory of the Commonwealth or a local election or a referendum;
  4. consent to the entering into or dissolution of a marriage of the maker or of a sexual relationship of the maker
  5. make or give effect to a decision
    1. about the care and wellbeing of any child of the maker; or
    2. about the adoption of a child under 18 years of age of the maker;
  6. to enter into, or agree to enter into, a surrogacy arrangement on the maker's behalf; or
  7. consent to the making or discharge of a substitute parentage order on the maker's behalf; or
  8. manage the estate of the maker on the death of the principle; or
  9. consent to an unlawful act (13).

There has been much consensus around the issue that there are some matters that are so personal that a substitute decision-maker including a guardian, enduring guardian, an attorney or enduring attorney cannot make a substitute decision about.(14) Examples are making substitute decisions entering marriage or a sexual relationship, making or revoking a will and voting in an election.

Another important thing that the Powers of Attorney Act 2014 (Vic) does is to introduce the concept of supportive attorneys. These are adults who another adult person may appoint to act as their 'supportive attorney' to support them to make decisions and then act on (give effect to) those decisions. Supportive attorneys and their role are discussed at 10.13, below.

In the Northern Territory the Advance Personal Planning Act (NT), which came into force on 17 March 2014, took a more radical approach to the content and purpose of enduring documents. It replaced enduring powers of attorney made under the Powers of Attorney Act (NT) with advance personal plans. While it has not been possible to make enduring powers of attorney made under the Powers of Attorney Act (NT) since 17 March 2014, Part III of that Act continues to have effect in relation to enduring powers of attorney created in the Territory before that date and to interstate enduring powers recognised under that Act, regardless of when they were created. (15) The key thing to note is that an advance personal plan can be made to cover "all matters" or "care or welfare matters (including health care)" or "financial matters". Consequently, while enduring powers of attorney used to deal only with financial matters, from now on in the Northern Territory, the appointments that replace them are likely to be found in a document that also deals with personal decision-making, medical and dental consent and may include provisions that would be described as an advance care directive elsewhere. These documents are likely to include advance consent decisions (about future health care) and advance care statements (containing views, wishes and beliefs as a basis for future decision-making by others).(16) However, it may also be the case that many people will prefer to make more than one advance personal plan; for example one dealing with financial matters and another dealing with the personal and other matters and decisions that can be included in an advance personal plan.

For the purposes of this chapter it is assumed that the tests for capacity to make enduring powers of attorney are the same as the tests for capacity to revoke them.(17) While there are tests for capacity to make an enduring power of attorney that are set out and discussed below; it should be remembered that, in the absence of evidence to the contrary, the presumption of capacity will prevail.(18)

10.3.1 The common law tests - used in New South Wales, South Australia, Western Australia

In New South Wales, South Australia and Western Australia the test for capacity to make an enduring power of attorney is found in the cases set out below.

In Queensland, and following it in Tasmania, Victoria and the Australian Capital Territory, the test for the capacity to make an enduring power of attorney is found in the powers of attorney legislation of that State or the Territory. For Queensland and Tasmania see, 10. 3. 2; for Victoria see, 10. 3. 3 and for the Australian Capital Territory see 10. 3. 4.

The starting point for the common law is its presumption that an adult has the capacity to enter any legal transaction or make any legal document such as a will or a power of attorney. However, where the there is a valid trigger for the questioning of capacity, the statement of Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright sets out the general principle. They said:

[T]he mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.(19)

The approach of the High Court judges in Gibbons v Wright acknowledges two important fundamental principles. Firstly, many of us will not know the nature and effect of most legal documents unless those matters are explained to us. Conclusions about capacity cannot be made about us unless we have that explanation. This is the crucial "information step" discussed in Chapter 1. Secondly, the requisite understanding is determined by, and specific to, the particular transaction being carried out, which is, in this context, the making of an enduring power of attorney. This is the task specific nature of capacity also discussed in Chapter 1.

In Ranclaud v Cabban Young J set out some of the specific matters that a maker of an enduring power of attorney had to understand in order to be capable of making a valid enduring power of attorney. He noted that enduring powers of attorney permit the attorney to exercise any function which the maker of the power of attorney may lawfully authorise an attorney to do. Accordingly, when considering whether a person was capable of making an enduring power of attorney it was necessary to be sure that they understood not only that they were authorising someone to look after their affairs but also the sort of things the attorney could do without further reference to them, including writing cheques on their behalf or selling their house. (20) This has particular relevance in the ACT, Victoria and Queensland where their respective Powers of Attorney Acts provide lists of financial matters that a maker, under an enduring power of attorney, can (and, as well, in Victoria cannot) authorise an attorney under that power to deal with.

Even though, as mentioned above, the test for the capacity to make an enduring power of attorney is found in the powers of attorney legislation of Queensland, Tasmania, Victoria and the Australian Capital Territory, the Queensland Guardianship and Administration Tribunal, QCAT and the Supreme Court of Victoria have dealt usefully with cases which set out the common law requirements for capacity to make an enduring power of attorney. In a 2005 case also involving an elderly person making numerous enduring powers of attorney, the then Queensland Guardianship and Administration Tribunal noted that Ranclaud v Cabban was a case in which a 79 year old woman made six enduring powers of attorney in favour, alternatively, of two different persons over a 8 1/2 month period. Young J was concerned that because the woman had executed so many powers of attorney in such a short time she did not appear to have the ability to weigh up alternatives, make decisions and give instructions which were likely to remain constant for any period.(21) Consistency of decision-making has since been a hallmark of capacity.

The Queensland Tribunal applied Ranclaud v Cabban and, after making its findings of fact, was satisfied that Mr CEJ did not have the capacity to make or revoke enduring powers of attorney since a certain date.(22)

In England the test for capacity to make an enduring power of attorney has been summed up into four points. The maker must understand the nature and effect of an enduring power of attorney they are making. This means that they must appreciate that:
  1. the attorney will be able to assume complete authority over the maker's affairs (or all those covered by the enduring power of attorney);
  2. the attorney will in general be able to do anything with the maker's property which the maker could have done;
  3. the attorney's authority will continue if the maker becomes mentally incapable; and
  4. in the event that they become mentally incapable, the power will be effectively irrevocable.(23)

In 2007 in Queensland, following an unreported Supreme Court decision, the then Guardianship and Administration Tribunal accepted expert medical opinion that for most members of the community, enduring powers of attorney were both more unfamiliar and more complex than a will.(24) Consequently, the Tribunal considered that a higher level of cognitive ability and therefore a higher standard of capacity would be required for making an enduring power of attorney than for making a will.(25) While this conclusion was appropriate for that particular case, this cannot be extrapolated to all cases, each of which should be considered in respect to the person's individual situation and the complexity of the task at hand. Clearly, some wills are more complex than others, as are some enduring powers of attorneys.

The following case illustrated just that point. In 2008, in a case involving an enduring power of attorney sworn in the Australian embassy in Lebanon, but conforming with the requirements of the Instruments Act 1958 (Vic), Forrest J of the Supreme Court of Victoria adopted the suggestion made by the authors of Mental Capacity - Powers of Attorney and Advance Health Directives (26) that to apply Young J's approach in Ranclaud v Cabban(27) the following matters, at least, needed to be considered:
  1. the nature and extent of the assets to be managed (at least in a broad sense);
  2. the decisions likely to be made on the donor's behalf; and
  3. the ability of the attorney to carry out the tasks involved.(28)
Forrest J then continued by noting that if the test in Gibbons v Wright was applied, the question would be; did the maker of the enduring power of attorney understand its purport when they signed (executed) it? However, if the Ranclaud v Cabban test were to be applied, the maker of the enduring power of attorney would have to have had "a more intricate understanding" of the consequences of the enduring power of attorney, and in particular the actions that could be taken by the enduring attorney in relation to, in the case Forrest J was deciding, the companies and the trust properties that the maker of the enduring power of attorney owned or controlled.(29)

Forrest J took the view that the Ranclaud v Cabban test should be accepted. He considered it was consistent with the English case referred to above, Re K (30), in requiring more than just an appreciation of the purport of a power of attorney and not inconsistent with Gibbons v Wright. He went on to note that each enduring power of attorney should be examined in accordance with its accompanying circumstances. In the circumstances of the case he was deciding this meant that it had to be proved that the maker of the enduring power of attorney knew, when he made the enduring power of attorney, that he was giving the enduring attorney control over trust properties in a real, if not a legal, sense. While the maker of the enduring power of attorney did not have to understand all the intricate parts of the transactions that the enduring attorney was about to enter into, it had to be proved, given the significant assets involved, that he understood at the time he made the enduring power of attorney, that his enduring attorney would have the ability to transfer the shareholdings and the directorship of the trust companies to others (including himself), and to effect the sale of the properties which were the subject of the trust deed at a price determined by the enduring attorney.(31)

In the 2010 case, Szozda v Szozda, Barrett J of the NSW Supreme Court followed the Australian and English authorities set out above.(32) He accepted suggestions in submissions that the degree of understanding required of a maker of an enduring power of attorney will vary with the extent and complexity of the maker's affairs. So that it is likely that a finding of lack of capacity will more readily be made in relation to a person with a great deal of property of various kinds and who has interests in many businesses, than in relation to a person with objectively identical characteristics in relation to mental capacity but who has, say, only a house, its contents and a bank account.(33)

Barrett J was at pains to differentiate between the capacity needed to make a will and that required to make an enduring power of attorney which gave the attorney general and consequently wide powers. He noted that will-makers must have the capacity to appreciate what their property is, to recognise the persons who have a moral claim to the estate and to exercise a balanced judgment as to those claims. These were not matters that makers of enduring powers of attorney, which give the attorney general powers, have to put their minds to. What they were doing was giving a "complete and lasting delegation" to the attorney. He continued:

That concept of empowering another person to act generally in relation to one's affairs raises two basic questions. First, is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act - but with no duty to seek my permission in advance or to tell me after the event, so that they can, if they so decide, do things in my affairs that I would myself wish to do (such as pay my bills and make sure that cheques arriving in the post are put safely into the bank) and also things that I would not choose to do and would not wish to see done - sell my treasured stamp collection; stop the monthly allowance I pay to my grandson; exercise my power as appointor under the family trust and thereby change the children and grandchildren who are to be income beneficiaries; instruct my financial adviser to sell all my blue chip shares and to buy instead collateralised debt obligations in New York; have my dog put down; sell my house; buy a place for me in a nursing home? Second, is it to my benefit and in my interests that all these things - indeed, everything that I can myself lawfully do - can be done by the particular person who is to be my attorney? Is that person someone who is trustworthy and sufficiently responsible and wise to deal prudently with my affairs and to judge when to seek assistance and advice? The decision is one in which considerations of surrender of personal independence and considerations of trust and confidence play an overwhelmingly predominant role: am I satisfied that I want someone else to be in a position to dictate what happens at all levels of my affairs and in relation to each and every item of my property and that the particular person concerned will act justly and wisely in making decisions?(34)

This case led the way in regards to acknowledging the importance of the "who" of the appointment. That is, one of the considerations a person needs to put their mind to (and for some, this may be affected by mental disorders causing impairments in memory or judgement) when appointing an enduring power of attorney, is the trustworthiness, responsibility and ability of the attorney. In this case, three adult children of Mrs Szozda's late son sought a declaration that the enduring and general power of attorney she made on 28 September 2006, when she was 95 years of age, was invalid. They sought other orders as well. Mrs Szozda's daughter, through a cross-claim, sought a declaration that the September 2006 power of attorney was valid, and a declaration that each of the 2004 powers of attorney and the March 2006 power of attorney made by Mrs Szozda had been revoked and were no longer effective. After a consideration of the evidence of the lay witnesses and the medical evidence, Barrett J made a series of findings of fact relating to Mrs Szozda's capacity at the relevant times. He then continued:

The overall conclusion is therefore fourfold: first, that nothing in the evidence shows that Mrs Szozda was informed, on 28 September 2006, of the full meaning and significance of the power of attorney she was about to sign; second, that Mrs Szozda's statements and conduct in the presence of the solicitors on that day suggesting comprehension and acceptance do not establish understanding by her of the nature, implications and far-reaching ramifications of the power of attorney document she was signing and the several acts the attorneys were authorised to do; third, that Mrs Szozda's cognitive incapacity on 28 September 2006 was such that she could not have understood the nature, implications and far-reaching ramifications of the appointment under the general and enduring power of attorney document she signed or the range of circumstances, affecting herself and her property, in which the attorney would be empowered to act; and, fourth, that, according to the applicable general law principles, Mrs Szozda did not possess, on 28 September 2006, the capacity necessary to enable her to grant a general power of attorney in the form of the document she signed on that day.(35)

Consequently, Barrett J held that the enduring power of attorney Mrs Szozda made on 28 September 2006 was invalid. He also made a number of subsequent orders.

In a 2012 case in the NSW Supreme Court in which Lindsay J held that the maker (donor) of the enduring power of attorney had the capacity to make the appointment, he stated that he inclined "towards acceptance of Barrett J's analysis in Szozda v Szozda".(36) However, he took the view that understanding "the general nature" of what the maker was doing when executing an enduring power of attorney was sufficient to constitute a capability to make the enduring power of attorney. He did not accept the argument that the maker was required to understand the "far-reaching ramifications" of the appointment in order to make a valid enduring power of attorney.(37)

It should be noted that in New South Wales the person who witnessed the maker signing the enduring power of attorney, must be a prescribed witness and is usually a solicitor. Also, they must certify that they explained the effect of the enduring power of attorney to the maker who appeared to understand that effect.(38) However, as Szozda v Szozda shows, such certification, even when conscientiously made, is not necessarily proof that that the maker did understand the effect of the enduring power of attorney they were about to sign.(39)

10.3.1.1 Standard and burden of proof of capacity to make an enduring power of attorney- under the common law

Forrest J also dealt with the question of the standard and burden of proof of capacity to make an enduring power of attorney in the 2008 case Ghosn v Principle Focus Pty Ltd.(40) He stated that, for the purpose of determining capacity, he could see no reason to distinguish between the burden (and standard) of proof required to prove testamentary capacity and the burden (and standard) of proof required to prove the capacity to execute (an enduring) power of attorney. Consequently, he applied the approach taken by the Victorian Court of Appeal in Kantor v Voshalo to the matter.(41) The effect of his decision is that where the evidence in a case, taken as a whole, is sufficient to throw a doubt upon the competency of the maker of the enduring power of attorney, then the court (or tribunal) must decide against the validity of the enduring power of attorney unless it is satisfied affirmatively that the maker was of sound mind, memory and understanding when they made i.e. signed or otherwise executed it.(42)

In 2012 in the NSW Supreme Court, Lindsay J noted Forrest J's approach and that Harrison J of the NSW Supreme Court had declined to follow it and distinguished the Ghosn Case on its facts.(43) Lindsay J noted that Harrison J was attracted by the proposition that, as a consequence of the existence of a "presumption of sanity" operating in the general law, a person who asserts incapacity must prove it.(44) He went on to comment that:

Where the burden of proof may lie in a case calling for an application of general law principles may depend upon the class of case concerned, whether there is accumulated judicial experience in dealing with cases of that class and considerations of fairness. From distillations of experience and considerations of fairness, legal rules may emerge. Such rules might be informed by a general precept that "he who alleges must prove", but that is no sure guide to every case. The operation of rules as to onus of proof might also be allowed practical scope for reasonable operation by a distinction being drawn between the location of the "legal" or "ultimate" burden of proof (a failure to discharge which results in the failure of a claim) and a shifting "evidentiary" burden (which, in the course of a hearing, generally means that each party may be at a forensic disadvantage if he, she or it fails to adduce evidence in answer to another party's evidence suggestive of a particular outcome).(45)

Subsequently however Lindsay J went on to give legal policy reasons why he considered that attorneys appointed under enduring powers of attorney should not, unless there was an evidential basis for doing so, be required to prove that a maker had the required mental capacity to make the appointment. He explained that:

[T]he practical utility of a power of attorney would be severely diminished if, in all cases or even most, [an attorney] were required to prove that the [maker] had the requisite mental capacity to grant it. The nature of such an instrument requires that, in general, parties dealing with an attorney in circumstances in which the instrument appears to be regular on its face, should be able, in the ordinary course, to act upon an assumption that the instrument is valid. Whether such a conclusion is reinforced by reference to a "presumption of sanity" or some other form of presumption (such as a "presumption of regularity"), it is grounded upon the character of the instrument and the purpose it serves in the community served by the law.(46)

10.3.2 Queensland and Tasmania

In Queensland the Powers of Attorney Act 1998 specifically retains the presumption of capacity.(47) However, it also states that an adult may make an enduring power of attorney only if they understand the nature and effect of such a power of attorney. Furthermore, it states that understanding the nature and effect of an enduring power of attorney includes understanding the following matters:
  1. that in the power of attorney the maker may specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power;
  2. when the power of attorney begins;
  3. that once the power of attorney begins, the attorney will have full control over, the (financial) matters included in the enduring power of attorney, subject to terms or information in the power of attorney about how it is to be exercised;
  4. that they may revoke the enduring power of attorney at any time they are capable of making an enduring power of attorney giving the same powers to the attorney;
  5. that the power of attorney continues if they, the maker, become a person who has impaired capacity; and
  6. that at any time they are not capable of revoking the enduring power of attorney, they are unable to effectively oversee its use by the attorney.(48)

In Tasmania the maker of an enduring power of attorney must understand the nature and effect of the document and that understanding includes understanding the matters as set out above for Queensland.(49)

10.3.3 Victoria

The original Victorian provisions relating to enduring powers of attorney were inserted into Part XIA of the Instruments Act 1958 (Vic) in 2003. They followed the Queensland provisions closely but not identically. However on 1 September 2015 the Powers of Attorney 2014 (Vic) commenced. While enduring powers of attorney made under the now repealed provisions of the Instruments Act 1958 (Vic) continue to have effect, many provisions of the Powers of Attorney 2014 (Vic) apply to them.(50)

As noted in Chapter 9.1, the Act precludes the making of new enduring powers of guardianship. However, it leaves in place those appointments of enduring guardianship already made under the Guardianship and Administration Act 1986 (Vic) either already in operation or not yet in operation because the maker still has capacity.(51)

The Act provides for enduring powers of attorney covering not only financial matters but also personal matters.(52) As a consequence, we have decided to deal with the Victorian enduring powers of attorney for both financial matters and personal matters in this chapter. We are aware that appointments of enduring guardianship made under the now repealed provisions of the Guardianship and Administration Act 1986 (Vic) already in operation or made and ready to come into operation are still valid. As a result we deal with them to some extent in Chapter 9, but because those appointments of enduring guardianship are now governed largely by the provisions of the Powers of Attorney Act 2014 (Vic), there are a number of cross references in relation to them in Chapter 9 to Chapter 10.(53)

The Powers of Attorney Act 2014 (Vic) also deals with non-enduring powers of attorney, which are for financial matters only. (54) However, this chapter deals only with enduring powers of attorney under the new Act and enduring powers of attorney made under the provisions of the now repealed Instruments Act 1958 (Vic).(55) Nevertheless there are three matters to be noted. First, a person must have capacity to make or to revoke a non-enduring power of attorney and the tests for that capacity are the same as those for capacity to make or revoke an enduring power of attorney. Second, it should also be noted that a non-enduring power of attorney made by a person is not effective if the person loses the capacity to make a non-enduring power of attorney. Third, the non-enduring powers of attorney provided for in the Act and made according to the requirements of the Act have the effect of giving the attorney under the power authority to do anything on behalf of the maker that a maker can lawfully do by an attorney. In other words a power of attorney of the kind developed by the common law to allow attorneys, as agents, to conduct business, financial and property affairs for principals able to instruct or direct them.

The new Act restates, in legislative form, the presumption of capacity developed in the common law by the judges while also stating, in legislative form, the tests that have to be met where there is a proper (evidential) basis for doubting that the person had decision-making capacity to make the enduring power of attorney they went through the process of making. (56)There is little real difference between the legislative statement of the tests and the common law versions of those tests.

In Victoria a person may make an enduring power of attorney if they:
  1. are of or over 18 years of age, and
  2. have decision-making capacity in relation to making the enduring power of attorney.

A person is presumed to have decision making capacity unless there is evidence to the contrary.(57) However, the new Act also provides that a person has decision-making capacity if they are able to:
  1. understand the information relevant to the decision and the effect of the decision. (A person is taken to understand information relevant to a decision if they understand an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.(58); and
  2. retain that information to the extent necessary to make the decision; and
  3. use or weigh that information as part of the process of making the decision; and
  4. communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.(59)
The Act also recognises that decision-making capacity can be decision specific by stating that in determining whether or not a person has decision-making capacity, regard should be had to the fact that they may have decision making capacity for some matters and not others, that if they do not have decision-making capacity for a particular matter, this may be a temporary and not a permanent state of affairs.(60)

The Act also warns that it should not be assumed that a person does not have decision making capacity for a matter on the basis of their appearance or the fact that they have made a decision that is, in the opinion of others, unwise.(61) However, the Act also notes that the fact that a person has made or proposes to make a decision that has a high risk of being seriously injurious to their health or wellbeing may, in conjunction with other factors, be evidence that the person is unable to understand, use or weigh information relevant to the decision or the effect of the decision.(62)

The Powers of Attorney Act 2014 (Vic) reflects the concept of supported decision-making in a number of its provisions. In the context of determining whether or not a person has capacity to make particular decisions, it provides that when determining that question, regard should be had to the possibility that the person may have decision making-capacity for a matter if it is possible for them to make a decision in relation to the matter with practicable and appropriate support.(63)

The Act sets a number of matters a person must understand if they are to be considered to have capacity to make an enduring power of attorney. These are:
  1. that they, as the maker of the enduring power of attorney may, in the power of attorney document, place conditions on the power given to the attorney and give instructions to the attorney about the exercise of the power given to the attorney,
  2. that they understand when the power of attorney commences(64)
  3. that once the power of attorney is exercisable in relation to a matter, the attorney has the same powers as they had when they, the maker, had decision-making capacity for that matter, and further, that the enduring attorney may do anything for which power is given in the power of attorney document,
  4. that they may revoke the power of attorney at any time when they have decision-making capacity to make an enduring power of attorney,
  5. that the power of attorney continues even if the principal subsequently becomes a person who does not have decision making capacity for a matter in the power of attorney, and
  6. that at any time when they do not have decision-making capacity in relation to revoking the power of attorney, they are unable to effectively oversee the use of the power.(65)
When an appropriately skilled person is assessing a person's capacity to make an enduring power of attorney in Victoria, they must assess a person's capacity to understand these matters as the consequences of making an enduring power of attorney and appointing an enduring attorney. However, as Lindsay J of the NSW Supreme Court pointed out in Scott v Scott, what is required for a person making an enduring power to have capacity to make such a document was to understand "the general nature" of what they were doing by executing the enduring power of attorney.(66)

In Victoria the witnesses to the enduring power of attorney must each sign a certificate stating that at the time the maker made the power of attorney they appeared to the witness to have the capacity to make the power of attorney.(67)

10.3.4 Australian Capital Territory

The Powers of Attorney Act 2006 (ACT) restates the presumption of capacity so that an adult making an enduring power of attorney is taken to understand the nature and effect of making the power of attorney, in the absence of evidence to the contrary. (68) Again following the Queensland model closely but not identically, the Australian Capital Territory Act states that understanding the nature and effect of making an enduring power of attorney includes understanding each of the following:
  1. that, in the power of attorney, the maker may state or limit the powers to be given to an attorney;
  2. that, in the power of attorney, the maker may instruct the attorney about the exercise of the powers given them;
  3. when the powers given under the power of attorney can be exercised by the attorney;
  4. that, if the powers under a power of attorney can be exercised by the attorney, then the attorney has the power to make decisions in relation to, and will have full control over, the matter covered by the power of attorney, subject to terms or information about exercising the powers, that are included in the power of attorney;
  5. that the maker may revoke the power of attorney at any time they are capable of making the power of attorney;
  6. that the power of attorney continues even if the maker becomes a person with impaired decision-making capacity; and
  7. that, at any time the maker is not capable of revoking the power of attorney, they cannot effectively oversee the use of the power.(69)

10.3.5 "Planning capacity" in the Northern Territory

In the Northern Territory only an adult may make an advance personal plan.(70) The Advance Personal Planning Act (NT) requires an adult to have "planning capacity" in order to make such a plan. The Act also provides that a person has planning capacity if they have decision-making capacity for making an advance personal plan and do not have an (adult) guardian appointed for them.(71) However the Advance Personal Planning Act (NT) has a test for decision-making capacity, which is a restatement of the established common law test for capacity. It provides that a person has decision-making capacity for a matter if they have capacity to:
  1. understand and retain information about the matter; and
  2. weigh the information in order to make a decision about the matter; and
  3. communicate that decision in some way.(72)

The Act also points out that an adult is presumed to have decision-making capacity for a matter until the contrary is shown.(73) Consequently it is only when a person cannot do the things set out in the last paragraph in relation to a matter that it can be said that they do not have decision-making capacity to make a decision in relation to that matter.

10.4 Assessing capacity to make and revoke enduring powers of attorney

While the common law tests for making and revoking enduring powers of attorney are used in New South Wales, South Australia and Western Australia, specific but different statutory tests for capacity are used in Queensland, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory. Consequently, this section will deal first with the generic baseline approach to assessment that applies to all jurisdictions and then will discuss the application of the specific tests to the assessment of capacity.

It is important to note before embarking on any challenge to capacity that the presumption that an adult has the capacity to make an enduring power of attorney can be rebutted by satisfactory evidence. However, the onus is that of proving positively that the maker lacked capacity at the time they made the enduring power of attorney and that onus lies with the person challenging the validity of the power of attorney.(74)

10.4.1 The principles of assessment of capacity to appoint an enduring power of attorney

We use the generic approach to capacity assessment adopted across this text, namely:
  1. The "why" of assessment;
  2. Global assessment of mental state and cognition;
  3. The "what" of assessment;
  4. The "who" of the assessment ;
  5. The "freedom" of the assessment;
  6. Opportunities for supported decision-making

This needs to be applied to each individual case. In Scott v Scott, after quoting Hodgson LJ's statement; "One cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case", Lindsay J went on to point out that what followed from that statement of principle was that each case must be considered on its own facts. (75) In an overarching approach referring inclusively to the "why", the "what" the "who" and the "freedom" of the decision, individually applied to each case, he continued:

What follows from this statement of principle is that each case must be considered on its own facts. Care needs to be taken not to over-generalise. There is no rule of general application relating to all powers of attorney without regard to particular facts. Attention must be focussed on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed.

An exploration of all the circumstances of the case will, not uncommonly, call for consideration of events leading up to, and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. A longitudinal assessment of mental capacity, along a time line extending either side of the focal point, may be necessary, or at least permissible, in order to examine the subject's mental capacity in context. Medicos and lawyers, alike, tend to embrace that approach. It is difficult to do otherwise. Context has a temporal as well as spatial and relational dimensions.(76)

Capacity assessors need to be aware of the temporal, spatial and relational circumstances of the case as well as the assessing physical and mental health aspects of the maker of the enduring power of attorney.

10.4.1.1 The "why" of assessment

Acknowledging both the presumption of capacity and the intrusive nature of assessment simultaneously, it is important to reflect on the "why" of the assessment. Who is requesting the assessment and why? Is there already a valid power of attorney in place and is the potential maker aware of such? Is there a valid trigger for rebutting the presumption of capacity? In some cases, the timing may be inappropriate, particularly in regards to maximising autonomy. For example, if the person is, or has been recently acutely ill, it may not be the best time to assess capacity, which should be postponed if possible. Regardless, the reasons for the assessment should be documented in any report.

10.4.1.2 Global assessment

When a clinician is asked to assess capacity to appoint an attorney under an enduring power of attorney, it is helpful to place the specific assessment of capacity in the context of the person's overall mental function and health status. A global assessment of the person's mental state and cognitive function should be made including an assessment of the specific frontal and executive functions of judgment, reasoning and planning which are relevant to decision making.

10.4.1.3 The "what" of assessment

When assessing whether a person understands the matters they are required to understand in order to make a valid enduring power of attorney, it is essential that the person is able to repeat, in their own words, their understanding of those matters after they have been explained to them. As previously stated, in New South Wales, South Australia and Western Australia.(77) the tests for capacity to make an enduring power of attorney are found in the common law in following cases (outlined 10. 3. 1 above):

  1. Gibbons v Wright in which Dixon CJ, Kitto and Taylor JJ outlined the principle of understanding the nature and effect of the instrument when explained;(78)
  2. Ranclaud v Cabban in which Young J emphasised the need for the donor to understand not only that they were authorising someone to look after their affairs but also the sort of things the attorney could do without further reference to them;(79)
  3. But also Szozda v Szozda (80) and Scott v Scott (81) in which Barrett J and Lindsay J of the NSW Supreme Court explain and nuance to the decisions from other jurisdictions that they refer to in their respective judgments.

In New South Wales, the functions given under a power of attorney relate to financial matters. Accordingly, the maker must understand that the "sort of things" the attorney can do without reference to them include selling their house and operating their bank account. This is specified in Ranclaud v Cabban.(82) So accordingly, the person might be asked, in addition to explaining why they chose a particular person: "Can you please tell me the sort of things your attorney can do without consulting you?"

In Queensland, Tasmania, and the Australian Capital Territory, the test for the capacity to make an enduring power of attorney is found in the powers of attorney legislation, which specifies that the maker must understand:
  1. that they can state, specify or limit the powers to be given;
  2. when the power of attorney begins;
  3. that after the power of attorney has come into operation, the attorney will have the power to make, and will have full control over the functions given to them. However, while the maker has decision-making capacity in relation to decisions about enduring powers of attorney, the maker may direct the attorney as to the powers the attorney may exercise;
  4. that they (the maker) may revoke the enduring power of attorney at any time they have the decision-making capacity to do so;
  5. that the power of attorney continues if they lose decision-making capacity in relation to decisions about enduring powers of attorney, but that at any time they are not capable of revoking the enduring power of attorney, they are unable to effectively oversee its use by the attorney.(83)
While the Victorian tests for capacity to make an enduring power of attorney are set out at 10. 3. 3 above, they are effectively the same as those just set out. As stated above, the Advance Personal Planning Act (NT) provides that a person has decision-making capacity for a matter if they have capacity to:
  1. understand and retain information about the matter; and
  2. weigh the information in order to make a decision about the matter; and
  3. communicate that decision in some way.(84)

As stated in Chapter 9, when assessing a person's capacity to appoint an attorney under an enduring power of attorney in Queensland and the Australian Capital Territory, the clinician must be mindful of whether the person is appointing a decision-maker for either financial or personal decisions or both sets of decisions.

10.4.1.4 The "who" of assessment

As articulated in Szozda v Szozda(85), the choice of the attorney is an important consideration in the decision to appoint an enduring power of attorney. Accordingly, the rationale for appointing a particular person as attorney should be assessed (the "who" of the appointment). In doing so, it is important to ascertain the following:
  1. has the person made any appointments of attorneys under enduring powers of attorney previously?
  2. if so, how frequently have there been changes (i.e. revocations and new appointments)?
  3. is this appointment in keeping with previous appointments (e.g. has someone else been consistently appointed as the attorney under an enduring power of attorney in the past)?
  4. what is the history of the relationship between the person and the appointee and has there been any radical change in that relationship coinciding with the onset or course of dementia?
  5. why has the person been selected for appointment as the attorney under the enduring power of attorney
  6. is the person trustworthy, capable and responsible?

10.4.1.5 The "freedom" of the appointment

Additionally, a task common to all assessments is to ensure that the maker of the enduring power of attorney is making the appointment freely and voluntarily and is not being unduly influenced or "schooled" to make an appointment.(86) This is the "freedom" of the assessment. As has been noted throughout this text, in Chapters 2 and 4, dementia may affect a person's appraisal of others.(87) Therefore, when undertaking assessments of people who wish to make an enduring power of attorney, it is important to undertake the interview in private. Beyond this, it is also prudent to consider the influence of the person who has brought the potential maker of the power of attorney to the solicitor, or who is in the waiting room.

It is important here to be alert to the risk factors for undue influence, referred to in Chapter 4 in regards to will-making,(88) that are equally applicable to the making of enduring powers of attorney, particularly in regards to the procurement of the signing of the document and the circumstances surrounding this.(89) The usual checklist applies, and there is much overlap with the "who" considerations. For example, is the maker of the enduring power of attorney a regular client of the lawyer or is the appointee? Who is giving instructions? Is the appointee a new acquaintance of the person? Are there other documents being signed or changed at the same time? Again, given the mandate of health care professionals to screen for and identity situations of financial abuse, these issues should be addressed and documented in any report.

For a case showing a guardianship tribunal dealing with assessments by psychiatrists, other doctors and lawyers of the capacity of a maker to execute an enduring power of attorney see, NPG (Review Enduring Power).(90)

For a case showing a guardianship tribunal dealing with assessments by health professionals, particularly doctors, of the capacity of a maker of an enduring power of attorney to revoke that enduring power of attorney see, FFG.(91)

10.4.1.6 Opportunities for supported decision making

Notwithstanding the fact that there are only legislative provisions for supported decision-making in Victoria(92)responsibilities under Article 12 of the CRPD mandate that opportunities for supported decision making be mined in every capacity assessment. A risk - hierarchy approach can be a useful model for determining the role for supported decision-making in this context. For example of a typical clinical case, a man in his late 80's has moderately severe dementia, which renders him unable to recall the meaning of an enduring power of attorney beyond three minutes. However, he responds to repeated rehearsal and cueing (e.g. "an enduring power of attorney appoints someone else to look after your...?" Is it money? Is it your health?). He has been in a longstanding de-facto relationship with the same man for 50 years. They have no other family. He repeatedly states that he loves and trusts his partner, and there is no evidence to the contrary. He understands that he owns his house, plus some "more money". This is what we would consider a low risk case for the appointment of his partner as his power of attorney, rendering cueing and supported decision-making an ethical and safe process.

10.4.8 Revocation

The principles for assessment of capacity to appoint an attorney under an enduring power of attorney apply equally to the assessment of capacity to revoke. The "who" of assessment applies particularly in regards to revocation. It is important therefore to enquire why the donor no longer feels that the appointee is appropriate. This is because unfounded paranoid ideation and suspiciousness often underlie such changes in the case of dementia.

10.5 Appointing attorneys under enduring powers of attorney (and decision makers in the Northern Territory)

10.5.1 Who may be appointed?

Adult men and women may be appointed enduring attorneys. But so may Public Trustees and trustee companies, and in all States except Victoria and in the Northern Territory but not the Australian Capital Territory, any company may be appointed attorney under enduring powers of attorney (hereafter enduring attorneys).

In Victoria persons at least 18 years old may be appointed as an enduring attorney, unless they are excluded from appointment for one of the reasons set out below, namely:
  1. they are insolvent and under administration,
  2. have been convicted or found guilty of an offence involving dishonesty. (However they may be appointed even if they have been so convicted or found guilty of an offence if they have disclosed the conviction or finding of guilt to the maker and the disclosure of the conviction or finding of guilt has been recorded in the enduring power of attorney),
  3. they are a care worker, a health provider or an accommodation provider for the maker.(93)
However, a trustee company is eligible to be appointed as an attorney, but only as an attorney for financial matters, under an enduring power of attorney and if the company is not a company against which a proceeding for winding up has commenced.(94)

Also the Public Advocate is eligible to be appointed as an attorney under an enduring power of attorney for personal matters.(95)

The Victorian Act reflects the possibility that there will be differences between attorneys, particularly where the attorneys are authorised to act severally under the enduring power of attorney and there is a disagreement between an attorney for personal matters and an attorney for financial matters regarding a matter where each has authority to act. In such a situation, either attorney may apply to VCAT for an order as to how the matter should be resolved. Unless the enduring power of attorney otherwise provides or VCAT has ordered otherwise, the decision of the attorney for personal matters prevails to the extent of any inconsistency.(96)

The Victorian Act also reflects the possibility that, from time to time, there will be differences in the relative needs of the maker of the enduring power of attorney in regards to personal and financial matters, which may cause differences in opinion between their attorneys for personal and financial matters (if these two attorneys are different people). Personal needs such as accommodation, food, clothing, services and medical care, all have cost implications which have to come from the maker's resources. The maker's financial resources may be stressed or even exhausted by all those demands, particularly if the expectation is that they will all be met at the same time. In most cases the attorneys will work out these matters amicably or at least appropriately. However to assist in the resolution of the issue, the Act gives primacy to the personal needs of the maker by requiring the attorney for financial matters to implement the decision of an attorney for personal matters under that power of attorney. However, it also provides that if the implementation of the decision of the attorney for personal matters would result in a serious depletion of maker's financial resources, the attorney for financial matters must apply to VCAT for an order on the matter. In other words the attorney for financial matters cannot refuse to comply with the request of the attorney for personal affairs.(97) Two other matters should be noted in this regard. First, the attorney for personal affairs can bring an application to VCAT about this matter or VCAT can commence proceedings in relation to it of its own initiative.(98) Second, one or more of the attorneys could have their appointment revoked, the enduring power of attorney could be revoked and replaced by an administration order or, in the most serious of cases an attorney could be ordered by VCAT or the Supreme Court to pay compensation to the maker or be charged with a criminal offence if there was substantial evidence that they dishonestly used the power of attorney to obtain a commercial advantage or cause loss to the principal or another person.(99)

Disagreements of the kinds set out above between an enduring guardian, whose appointment is in operation, and an attorney under an enduring power of attorney for financial matters can arise and VCAT can be involved in the same way as outlined above in relation to enduring attorneys.(100)

In addition, a person can appoint as their attorney under an enduring power of attorney not a named individual, but the occupier of a position, so that whoever is the holder of that position when the enduring power of attorney was made. Or the holder of that position at a later time, may carry out the duties and have the same obligations or responsibilities as if they were personally appointed as the maker's enduring attorney.(101)

In Queensland and the Australian Capital Territory corporations that are neither the Public Trustee nor a trustee company cannot be appointed enduring attorneys.(102)

In the Northern Territory the following may be appointed as a decision maker in an advance personal plan:
  1. an individual who is at least 18 years of age (a person under 18 may be appointed, but the appointment has no effect until the person appointed turns 18); (103) or
  2. a licensed trustee company (as defined in section 601RAA of the Corporations Act 2001); or
  3. the Public Trustee; or
  4. the Public Guardian.(104)

10.5.2 Appointment procedures

The legislation of each State and Territory sets out procedures for a capable adult to appoint an enduring attorney (decision maker in the Northern Territory).(105) It is not intended to discuss those procedures here as helpful information is available on the websites of guardianship tribunal or public guardian or advocate of each State and the Australian Capital Territory.

Nevertheless, it should be noted that in New South Wales, Queensland, South Australia, Tasmania, Victoria, Western Australia and the Australian Capital Territory an enduring power of attorney does not come into effect until it is accepted and signed by the attorney or at least one of them. If more than one attorney is appointed, each attorney may carry out their role under the enduring power of attorney only when they have accepted and signed it. If attorneys are given different functions under the power of attorney, they will be able to carry out the particular functions assigned to them if they have accepted their appointment. However, if there are joint attorneys with the same functions, the safer position is that the power of attorney is not capable of being operated until all joint enduring attorneys have accepted it. If only some of the functions given attorneys require joint attorneys then all of them would have to have accepted their role before that part of the power of attorney could be operated.(106)

Because advance personal plans in the Northern Territory may cover many more matters than enduring powers of attorney for financial matters, the appointment procedures in relation to them are set out in Chapter 9 at 9. 4. 3.

Although in the Northern Territory advance personal plans come into force when made, a decision maker appointed under such a plan may exercise their authority to make decisions in relation to matters given to them in the plan only when the maker has impaired decision-making capacity in relation to the particular matter.(107)

It is a common practice elsewhere in Australia for the maker of an enduring power of attorney for financial matters to arrange for the power of attorney to commence so that the attorney under the enduring power, with or without directions from the maker, can handle the maker's financial affairs on the maker's behalf. The exercise of the attorney's authority is not legislatively limited to when the maker of the power of attorney has lost decision-making capacity in relation to one, some or all of the their decision-making capacity in relation to their financial affairs.

However, we note that while it has not been possible in the Northern Territory since 16 March 2014, that the Powers of Attorney Act currently in force in there preserves and supports common law powers of attorney that operate when the maker of the power of attorney has "legal capacity". Such powers of attorney are revoked by a number of events, including "the legal incapacity of the [maker] or [attorney appointed under] the power at any time after the execution of the instrument creating the power".(108)Where a person wishes to make an advance personal plan, but also have a trusted person managing their financial affairs before they lose the capacity to manage those affairs themselves, it would appear that, in the Northern Territory, they would have to make both a common law power of attorney and an advance personal plan appointing the same person or persons as their attorneys and decision makers in the relevant documents.

However, a dealing in land made in the exercise of authority of a decision maker appointed under an advance personal plan does not take effect unless, or until, the plan is registered, with the Registrar-General.(109)

In Tasmania an enduring power of attorney is not legally effective until it is registered by the Recorder of Titles.(110)

In Victoria, in addition to the procedures required for the making of a valid enduring power of attorney referred to briefly above, there are provisions for the coming into force enduring powers of attorney whether they be for financial matters only or personal matters only or for both financial and personal matters.

First, the maker may provide in the enduring power of attorney that the power for all matters or the power for specified matters is exercisable either:
  1. immediately on the making of the power; or
  2. when the maker ceases to have decision-making capacity for the matters or matter; or
  3. any other time, circumstance or occasion.

Second, if the maker does not make a specification of these kinds in the enduring power of attorney, the power for all matters under the enduring power of attorney will be exercisable on and from the making of the power of attorney.

Third, if the maker specifies that the power or powers in the enduring power of attorney that are to be exercisable not immediately when the power is made or not when he or she ceases to have decision-making capacity for the matters covered by the power of attorney, or a matter, but at another time or in another circumstance or on another occasion, and before that time, circumstance or occasion, the maker does not have decision-making capacity for the matter, an attorney who has power for the matter may exercise that power during any period when the principal does not have that capacity.(111)

10.6 Responsibilities of attorneys appointed under enduring powers of attorney

When the maker of an enduring power of attorney loses capacity to understand the nature and effect of the power of attorney they have made, this is usually, but not always, a permanent state of affairs. Consequently, the enduring attorney they have appointed becomes the effective manager of and decision-maker about their financial affairs from that time on. While the initial relationship between the maker and the enduring attorney is one of principal and agent, once the principal loses their capacity to remove the agent, the fiduciary obligations of the enduring attorney come much more into play. Because of the greatly increased numbers of enduring powers of attorney being made and coming into effect, it is important that enduring attorneys and everyone else understand the ethical responsibilities, some of which are now set out in legislation, that enduring attorneys have to the person who appointed them. These matters are set out in the greatest detail in the Powers of Attorney Act 1998 (Qld). It is suggested that they apply to enduring attorneys appointed in the other Australian State and the two Territories to the same extent, unless modified by legislation.

It should be noted that it has long been established, and recently confirmed, that, notwithstanding the width of a power of attorney, attorneys have a duty and obligation to obey the instructions of the maker even when they are given after the power of attorney has been granted and even if the instructions are given orally. Acting contrary to those instructions is a breach of trust by the attorney. This was established in the High Court of Admiralty in England in 1858 in a case in which an attorney sold a ship contrary to instructions not in the power of attorney itself.(112) The judge, Dr Lushington, said:

I apprehend that, as a general rule, the grantee of a power of attorney is bound to follow the directions and wishes of the grantor, as, for instance, with respect to the power of attorney to sell stock, the grantee must exercise that power according to the orders of the grantor. I conceive that to use a power of attorney contrary to the known wishes and directions of the grantor, is a breach of trust.(113)

This approach was adopted in Victoria in 1983 and 2002 and 2004 in New South Wales.(114) In R v Holt, Tadgell J of the Supreme Court of Victoria stated:

It is not the law that an attorney given power by instrument under seal may, so long as the instrument remains unrevoked, [may] exercise the power it confers in disregard of any subsequent orders of his principal conveyed to him... Subject to any contrary sense of the instrument there always resides in the donor the right later to instruct the donee not to act on the power, or to act only in a stated way.

That the effect of a power of attorney, even if given under seal, may be modified by parol is made clear by the decision of The Margaret Mitchell the authority of which has so far as I am aware never been doubted.(115)

In a 2012 case a Master of the Supreme Court of South Australia, Judge Burley, used rather more modern language to make it clear that an attorney under an enduring power of attorney may not exercise powers conferred by the grant contrary to the wishes of the maker while the maker has the requisite capacity to give a competent instruction to the attorney (116)The maker's wishes may be communicated either verbally or in writing.

Another major responsibility of attorneys under either enduring or non-enduring powers of attorney is that by agreeing to carry out the responsibilities of an attorney, they are under a fiduciary duty not to obtain an advantage for themselves or to act in a way which is contrary to the interests of the maker of the power of attorney. In a 1991 case in the New Zealand High Court, Thomas J noted, in a case that involved powers of attorney given to their mother by two daughters going overseas, that:

An attorney cannot utilise a power of attorney to pay his or her personal debts. To do so contravenes the fundamental nature of an agency or fiduciary relationship. The powers of attorney are specifically directed at the management of the principal's affairs: it is not open to attorneys to either obtain an advantage for themselves or to act in a way which is contrary to the interests of their principals.(117)

In the 2002 Master Berecry of the NSW Supreme Court applied Thomas J's statement in a case involving an enduring power of attorney.(118) The same approach has been applied to attorneys under enduring powers of attorney in a number of Australian States.(119)

In the case of enduring powers of attorney, the maker may give binding instructions to the attorney, but only when they are still capable.

Instructions by an incapable maker should be considered, but need not be followed and must not be followed if they would place the attorney in breach of their obligation to apply the general principles and to act with reasonable diligence. This is referred to below at 10. 6. 1. 1. and 10. 6. 1. 2. While attorneys are required to consider the maker's views and wishes, they have to ensure the maker's proper care and protection. It is suggested that this means that when the maker states views and wishes when they are not capable, enduring attorneys should not act on those views and wishes if to do so would not be in best interests of the maker.

10.6.1 Obligations of enduring attorneys

10.6.1.1 To apply the general principles relating to incapable people set out in the legislation

In Queensland and the Australian Capital Territory the powers of attorney legislation sets out general principles that are relevant to enduring powers of attorney for financial matters. These include encouraging self- reliance, giving the now incapable maker the necessary support and information to participate in the making of financial decisions affecting their lives, applying substituted judgment so that the enduring attorney makes financial decisions that take into account what they consider would be the maker's views on the matter and exercises the powers given in a way that is appropriate to the maker's needs and circumstances.(120)

In 2015 the new Victorian Act came into force. The statutory principles in it relating to enduring powers of attorney reflect the underlying principles of the Act namely keeping the person involved in the decision-making about their finances both when their ability to make such decisions is impaired or is absent. Those principles impose a set of obligations on an attorney under an enduring power of attorney when making a decision about a matter on behalf of a maker who does not have decision-making capacity in relation to that matter, to:
  1. give all practicable and appropriate effect to the maker's wishes, and
  2. take any steps that are reasonably available to encourage the maker to participate in decision making, even though they do not have decision making capacity, and
  3. act in a way that promotes the personal and social wellbeing of the maker, including by;
(i) recognising the maker's inherent dignity, and
(ii) having regard to maker's existing supportive relationships, religion, values and cultural and linguistic environment, and
(iii) respecting the confidentiality of confidential information relating to the maker.(121)

Even though they are under no statutory obligation to do so, it is suggested that enduring attorneys elsewhere in Australia should apply the general principles that apply in Queensland, the Australian Capital Territory and Victoria when it is appropriate and practicable to do so.

10.6.1.2 To act honestly and with reasonable diligence

Enduring attorneys must exercise the powers given them according to the terms of the power of attorney and honestly and with reasonable diligence to protect the interests of the maker. The Queensland provision creates a criminal offence as well as a right in the maker to seek compensation for losses caused by the enduring attorney's failure to exercise their powers honestly and with due diligence.(122)

In South Australia and Western Australia the legislation requires an enduring attorney to exercise their powers with reasonable diligence to protect the interests of the maker and makes them liable to the maker for any loss caused by their failure to do so.(123)

In Tasmania an enduring attorney is taken to be a trustee of the property and affairs of the maker according to the terms of the power of attorney and must exercise their powers to protect the interests of the maker.(124)

In Victoria, an enduring attorney must act honestly, diligently and in good faith. They must also exercise reasonable skill and care.(125)

In the Northern Territory a person appointed in an advance personal plan as a decision maker for financial matters under the Advance Personal Planning Act (NT) is required to act honestly and with care, skill and diligence.(126)

While enduring attorneys have no statutory duty to act honestly or with reasonable diligence in New South Wales and the Australian Capital Territory, it is suggested that these are some of the essential obligations that apply to enduring attorneys and that enduring attorneys could be found liable in the courts for any provable loss caused by their failure to exercise their powers honestly or with due diligence.

10.6.1.3 To exercise their powers according to the terms of the power of attorney

While most enduring attorneys will have the full extent of the powers that a maker may give to an attorney under an enduring power of attorney, the terms of some powers of attorney may limit the attorney's powers.(127) In those circumstances the enduring attorney must act according to the terms of the power of attorney. The Powers of Attorney Act 1998 (Qld) is specific about these matters.(128) In Tasmania there are different forms for enduring powers of attorney one conferring on the attorney the particular powers set out in the form and the other conferring on the enduring attorney the power to do all the things the maker may lawfully authorise an attorney to do.(129) In South Australia, the form provides the maker with the same choices as the separate forms do in Tasmania.(130)

It is suggested that in the States and Territories where the matter is not dealt with in the legislation, that makers may give all the powers they can give at law to enduring attorneys simply by saying so. Similarly, they can confine the powers that they give to enduring attorneys by setting out the powers they wish to give the attorney in the power of attorney document. There are at least two difficulties with giving only limited powers in an enduring power of attorney. First, questions of the extent of the powers given are likely to arise. Second, an enduring attorney is likely to need more powers than a maker may think necessary. The time when this will become apparent is after the maker has lost capacity and cannot give the required, or all, powers to the attorney.

Legislation may limit what enduring attorneys may do. This will be seen below at 10. 7.

10.6.1.4 To avoid conflict transactions

In Queensland, Victoria and the Australian Capital Territory the powers of attorney legislation imposes an obligation on enduring attorneys not to enter into a transaction that does or may result in conflict between that transaction and the enduring attorney's duty towards the maker, unless the maker authorises the transaction. The legislation describes what is and what is not a conflict transaction.(131)

Again it is suggested that, in the States and Territories where this matter is not dealt with in the legislation, the obligation to avoid entering into conflict transactions arises out of an enduring attorney's general duty to the person who appointed them.

10.6.1.5 Not to breach a fiduciary obligation (duty)

It is well established in the common law that applies throughout Australia that if an attorney under an enduring power of attorney enters into a transaction that breaches their fiduciary obligations or duty towards the maker of the power of attorney, the relevant Supreme Court has jurisdiction to grant relief including setting aside the transaction or awarding equitable damages or compensation. A 2016 decision from New South Wales provides a clear example. In that case a Mrs C appointed her son as her enduring attorney. In 2012 she moved into a residential aged care facility as her eyesight was deteriorating and she had memory loss. The power of attorney was registered and in 2013 her son proceeded to transfer to himself the residential unit she owned. This was Mrs C's only asset. This was discovered when, in 2014, the manager of the aged care facility applied to NCAT for it to appoint a financial manager for her as Mrs C's fees were not being paid for her. NCAT appointed the Public Trustee and Guardian who, in turn brought proceedings on Mrs C's behalf in the Supreme Court. Hallen J was satisfied that the son had breached his fiduciary duty to his mother and made orders to ensure that Mrs C's unit was transferred back to her.(132)

10.6.1.6 Not to resign after the maker has lost capacity

In Queensland an enduring attorney may not resign while the maker is incapable, and thus legally unable to make a new enduring power of attorney, without the leave of QCAT or the Supreme Court.(133) In South Australia the leave of the Supreme Court is necessary.(134) In Victoria an attorney may resign if there is another attorney with the power or powers of the attorney who wishes to resign or there is an alternative attorney who is willing and able to act who would have the same power or powers of the attorney who wishes to resign. Otherwise the attorney who wishes to resign must seek, and obtain, the leave of VCAT or the Supreme Court.(135) In Western Australia if an enduring attorney wishes to resign when the maker is incapable, the process is to apply to WASAT to be removed and replaced as an attorney.(136) In the Australian Capital Territory the leave of ACAT is required.(137)

Sometimes an enduring attorney may wish or need to resign because of poor health. On other occasions the level of conflict between family members may lead the enduring attorney to wish to resign.(138) In many cases if the attorney under an enduring power of attorney has to resign, it will appropriate to apply to the relevant tribunal or court for the appointment of an administrator and, in some cases, a guardian.(139)

In New South Wales and Western Australia there is no provision for an enduring attorney to resign after the maker has lost capacity. However, in New South Wales an attorney or other interested persons may apply to either the Guardianship Tribunal or the Supreme Court to be removed and replaced as an attorney.(140) In Western Australia, an attorney or a person who in the opinion of WASAT has a proper interest in the matter may apply to the Tribunal for an order substituting the attorney.(141) It is suggested that making such an application is the appropriate course for an enduring attorney who wishes to or needs to resign.

In Tasmania the matter is dealt with by the single attorney or joint attorneys appointing the Public Trustee to replace them. This is achieved when the Public Trustee accepts the appointment and the appointment document is registered by the Recorder of Titles.(142)

In the Northern Territory an enduring attorney appointed under the Powers of Attorney Act (NT) made before 17 March 2014, when the Advance Personal Planning Act (NT) came into force, once appointed, could not resign without the leave of the Supreme Court.(143) Since the Powers of Attorney Act (NT) has remained in force in relation to the enduring powers of attorney created before the new Act came into force, it is reasonable to assume that enduring attorneys appointed under such powers of attorney still cannot resign without the leave of the Supreme Court.

However, the Advance Personal Planning Act (NT) specifically provides a process via which a decision maker may resign.(144) But the Act also requires a decision maker, where the decision maker is still alive, to take all reasonable steps to provide for the orderly transfer of decision-making authority from them to the maker or to another agent for the adult, as appropriate.(145)The Act also provides for what is to happen if the maker has died.(146)There is also a process for endorsing an advance personal plan with the fact that a person has ceased to be a decision maker when the maker of the plan no longer has planning capacity.(147)

10.6.1.7 Obligation to apply decision-making principles- Northern Territory

When a decision maker for financial matters appointed under an advance personal plan is exercising their authority to make decisions, they must exercise that authority in accordance with the relevant decision-making principles set out in s. 22 of the Advance Personal Planning Act (NT).

The decision-making principles give precedence to the views of the maker of the plan whether those views were in the form of an advance care statement made in the plan or subsequently. Consequently, the Act requires that where a maker has made an advance care statement about a matter, the decision maker must exercise the decision maker's authority so as to give effect to the statement, unless the maker, having decision-making capacity to do so, has stated that they do not want effect to be given to the statement; or the decision maker is excused from doing so by operation of s. 23 of the Act. Further, in determining how to give effect to the advance care statement the decision maker must exercise their authority in the way they reasonably believe the maker would have done in the circumstances.(148)

Where a maker has not made an advance care statement in their advance personal plan, the decision maker must, nevertheless, exercise their authority in the way they reasonably believe the maker would have done in the circumstances, unless the decision maker is excused from doing so under section 23. Section 23 will be returned to below.

Whether or not the maker made an advance care statement, the decision-maker has to (try to) determine what the maker would have done in the circumstances. This obligation requires the decision maker to:
  1. as far as is practicable, seek the maker's current views and wishes about the matter; and
  2. take into account:
    1. the maker's current and previously stated views and wishes about the matter; and
    2. the decision maker's personal knowledge of the maker and their views and wishes about the particular matter and matters generally.(149)

A decision maker may, but is not required to, consult other persons who the decision maker believes may have information relevant to determining what the adult would have done in the circumstances.(150)

The Act makes a distinction between the situation in which the decision maker reasonably believes what the maker would have done in the circumstances and where the decision maker is unable to form such a reasonable belief. Where the decision maker forms the reasonable belief, they must exercise their authority (make the relevant decision) in the way they believe the maker would have done; "even if doing so may not be in the [maker's] best interests".(151) Where the decision maker forms the reasonable belief, the only basis upon which they can avoid making the decision the maker would have made is to rely on one of matters set out in s. 22(2) of the Act and comply with the other requirements of the section.

Where the decision maker is unable to form a reasonable belief about what the maker would have done in the circumstances; or is excused by s. 23 from exercising substituted judgment, they must exercise their decision-making authority in the way that they reasonably believe is in the maker's best interests.(152)

When determining the maker's best interests, the decision maker must:
  1. take into account all relevant considerations; and
  2. weigh up those considerations, giving each of them the weight that the decision maker reasonably believes is appropriate in the circumstances.

While some of the considerations on this list may not be relevant to the decisions that a decision maker for financial matters will need to make, nevertheless such decision maker will need to be aware of all the considerations set out in the Act. This is because financial decision made by the decision maker may have impact on the matters raised in those considerations. The Act states that the relevant considerations include, but are not limited to:
  1. protection of the maker from harm, neglect, abuse and exploitation;
  2. providing appropriate care to the maker, including the taking of appropriate health care action;
  3. promotion of the maker's happiness, enjoyment of life and wellbeing;
  4. protecting the maker's freedom of decision and action;
  5. the maker's ability to be as independent as is practicable;
  6. the maker's ability to achieve their maximum physical, social, emotional and intellectual potential;
  7. the maker's ability to live in the general community and take part in community activities;
  8. maintenance of the maker's right to be treated with dignity and respect;
  9. the maker's ability to maintain their preferred living environment and lifestyle;
  10. maintenance or creation of a positive support network for the maker;
  11. protection of the maker's property and financial resources from loss, damage or misuse;
  12. protection of the maker's right to confidentiality of information about them.(153)
The decision maker is not prevented from making decisions that may be beneficial to another person if the benefit to the other person is of a kind that the adult:
  1. provided when they had decision-making capacity for the matter (or might reasonably be expected to provide) and
  2. the benefit to the other person would be reasonable in the circumstances, and also would not significantly adversely affect the adult's best interests.(154)

Where in reliance upon s. 23 a decision maker does not exercise substituted judgment, they must keep a written record of having done so and the grounds on which they formed the necessary reasonable belief.(155)

10.6.2 Administrative powers and responsibilities of enduring attorneys

10.6.2.1 Power to execute documents

The legislation in Queensland, Victoria and the Northern Territory provides, and it is suggested that elsewhere in Australia it is implied, that enduring attorneys may execute any document in order to carry out their functions as enduring attorneys.(156)

10.6.2.2 Record keeping and keeping the maker's property separate

In Queensland, Victoria, Western Australia and the Australian Capital Territory the powers of attorney legislation imposes an obligation on enduring attorneys requiring them to keep and preserve accurate records and accounts of all dealings and transactions made under the power of attorney.(157) In the Northern Territory these obligations are imposed on decision makers.(158)

In addition, in Queensland and the Australian Capital Territory, enduring attorneys must keep their property separate from the maker's property unless it is jointly owned property.(159) In the Northern Territory, decision makers with financial management powers must deal with the maker's property as if it were trust property unless it is jointly owned property.(160) While there is no statutory obligation to take these actions elsewhere in Australia, it is suggested that it is wise and in the interests of both maker and enduring attorney that such records are made and kept and that the maker's property is kept separate from that of the enduring attorney.

The obligation to keep the maker's property separate from that of the enduring attorney is not always understood as demonstrated in a 2006 case from Queensland.(161)The maker, RWM, had a brain injury acquired at birth. As an adult he appointed three family members as his enduring attorneys. RWM received a disability support pension and a mobility allowance as well as a small and varying wage from his employer. He lived at home and paid board and lodging. His personal spending was moderate yet he had no savings. A family member used his automatic teller machine card to access RWM's account. The evidence showed that RWM's pension was regarded as part of his family's income and was used accordingly and not necessarily for RWM's sole benefit.(162) The Tribunal concluded that it was necessary that a pattern of saving be established for RWM so that he had funds available to meet expenditure in the future. The family members who looked after him were on pensions and because of their age could not be expected to look after him for the rest of his life.(163) QCAT's predecessor tribunal did not revoke the enduring power of attorney but appointed the Public Trustee as administrator of RWM's estate for a year to ensure that a savings scheme was established for him. The tribunal stated that, in the period of the Public Trustee's appointment, [the person who accessed RWM's bank account] "should be given as much opportunity as is appropriate to manage RWM's day-to-day financial affairs".(164)

10.6.2.3 Right to information

In the Australian Capital Territory an enduring attorney has a right to all the information that the maker would have been entitled to when they had capacity and a person who has custody or control of the information must disclose it to the enduring attorney on request.(165) The Queensland provisions are the same except that the information that must be disclosed is that which is necessary to make informed decisions about anything the enduring attorney is authorised to do.(166) The Northern Territory provisions are essentially the same as those of Queensland, but with some added provisions to ensure the necessary documents or information is provided.(167)

In Victoria the right of an enduring attorney to obtain information relevant to the exercise of the powers given them by the maker under the power of attorney, particularly powers given to them in relation to personal matters, is provided for in different ways and subject to different limitations in the Disability Act 2006 (Vic), the Health Records Act 2001 (Vic) and the Privacy and Data Protection Act 2014 (Vic). It is implied by the existence of some of the provisions of the Powers of Attorney 2014 (Vic) itself.(168)

Enduring attorneys, whether for financial or personal affairs or both, need access to information in order to carry out their obligation to act with reasonable diligence to protect the interests of the maker by, for example, paying their gas and electricity bills or ensuring that such bills are paid, attending to health care and the provision of services to the person they are an enduring attorney for as well as attending to other mundane but essential matters. The existence of privacy legislation, which was not intended to operate to preclude the substitute decision-makers of incapable people carrying out the roles they were appointed to carry out, is often used elsewhere in Australia as an excuse for service providers and others not to provide such information.

Nevertheless, where enduring attorneys are given information to help them to make their decisions and carry out their functions, they should keep it confidential and divulge it to others only when that is necessary in the interests of the maker of the power of attorney. This is specifically provided for in Queensland.(169)

10.7 Legislative limitations on things that attorneys can do under enduring powers of attorney

One of the most commonly arising problems with enduring powers of attorney was that of enduring guardians giving substantial gifts to themselves and others and otherwise either dissipating the now incapable maker's estate or transferring it to themselves and others. In order to put an end to this and to clarify the responsibilities of enduring attorneys in this regard, most of the recently enacted powers of attorney legislation in Australia at least addresses aspects of this issue. Otherwise, the matter is dealt with by common law. This will be seen below at 10. 7. 2.

10.7.1 The giving of gifts

10.7.1.1 New South Wales

In the Powers of Attorney Act 2003 (NSW) the most commonly used form of enduring power of attorney is the "prescribed power of attorney". It may also be used as a general or normal power of attorney which is not intended to and will not operate if the maker loses capacity. However, a prescribed power of attorney does not authorise an attorney to give a gift of any of the maker's property whatsoever to any other person unless the power of attorney document itself expressly authorises the giving of the gift.(170)

This provision amends the common law by setting out the extent of the authority of enduring attorneys to give gifts on behalf of the maker of the enduring power of attorney. It allows enduring attorneys to give appropriate gifts, on behalf of a maker who has lost capacity, to members of the maker's family and other person's or organisations the maker was accustomed to making gifts to or could be anticipated to wish to give gifts to, for example new members of the family through birth, marriage or other arrangements. Consequently, the Act provides that if the "prescribed expression" is included in a prescribed power of attorney then the enduring attorney can give reasonable gifts to certain people. The prescribed expression is:
I authorise my attorney to give reasonable gifts as provided by section 11(2) of the Powers of Attorney Act 2003.

If the prescribed expression is included in the power of attorney, then the enduring attorney may give a gift:
  1. to a relative or close friend of the maker;
  2. of a seasonal nature or because of a special event such as a birth or marriage; or
  3. in the form of a donation of the nature that the maker used to make when they had capacity; or
  4. that they might reasonably be expected to make.
However, the value of the gift must not be more than what is reasonable having regard to all the circumstances particularly the maker's financial circumstances and the size of their estate.(171)

10.7.1.2 Queensland and Tasmania

The Queensland and Tasmanian provisions are that unless there is a contrary intention expressed in the enduring power of attorney, the limits on the attorney giving of gifts of the maker's property are the same as in the New South Wales Act set out above in 10. 7. 1. 1. Gifts in the form of seasonal or special occasion gifts may be given to relations and close friends of the maker. Enduring attorneys may give gifts to themselves or to a charity with which they have a connection.(172)The terms "relation" and "close friend" are defined in Queensland but not Tasmania.(173)

10.7.1.3 Australian Capital Territory

As in New South Wales, an enduring attorney appointed or recognised in the Australian Capital Territory may not make gifts of the maker's property unless specifically authorised to do so.(174) If the enduring power of attorney contains a general authorisation to make gifts, the attorney is limited to making gifts on behalf of the maker only to relatives or close friends of the maker, including the attorney if they fit either of those categories, or to a charity with which the attorney has a connection.(175) These gifts are limited to gifts for a celebration such as a birthday, Easter or Hanukah or an event such as a birth, marriage or graduation.(176) The gift must be one that it is reasonable that the maker might reasonably be expected to give and no more than reasonable particularly given the maker's financial circumstances and the size of their estate.(177)

10.7.1.4 Victoria

The new Powers of Attorney Act 2014 (Vic) clarified the situation in relation to the giving of gifts of the maker's property and using it for the maintenance of the maker's dependants.(178) The Act provides that an attorney may make gifts of the maker's property, subject to any condition or restriction in the enduring power of attorney itself, but subject to the following statutory limitations:
  1. the gift is reasonable having regard to all the circumstances and, in particular, the maker's financial circumstances; and
  2. the gift is to a relative or a close friend of the maker and is of a seasonal nature or for a special event; or is a type of donation that the maker made when they had decision-making capacity for the matter or that the maker might reasonably be expected to make.
Such gifts may be given even though the gift is made to the attorney, a relative or close friend of the attorney or an organisation with whom the attorney has a connection. However, the attorney must keep a written record of any such gift that is of or over $100 and that must set out the amount of the gift and the person or organisation to whom it was made.(179)

VCAT or the Supreme Court may order an enduring attorney to compensate the maker for a loss caused by the attorney contravening any provision of the Act when acting as attorney under the enduring power of attorney. This is the case even if the attorney is convicted of an offence in relation to their contravention. It still applies even if the maker has died because the compensation is made payable to the maker's estate. It also applies even if the enduring power of attorney is invalid or has been revoked or, at the time of the contravention, was invalid or had been revoked, the enduring attorney can still be required to pay compensation.(180) It is a criminal offence for an enduring attorney to use the enduring power of attorney dishonestly to obtain financial advantage for themselves or another person or to cause loss to the maker or another person. The penalty on conviction can be imprisonment for up to five years, a substantial fine or both. It is also a criminal offence for a person to obtain an enduring power of attorney with the intention of obtaining a financial advantage for themselves or another person or to cause loss to the maker or another person. The same penalties can be applied if the enduring attorney is convicted.(181)

If it is provided for in the enduring power of attorney, an attorney under an enduring power of attorney may provide for the needs of a dependant of the maker from the maker's property. Such provision must not be more than what is reasonable having regard to all the circumstances and, in particular, the maker's financial circumstances, unless the enduring power of attorney otherwise provides.(182)

10.7.1.5 Northern Territory

The Advance Personal Planning Act (NT) allows a decision maker who has financial management powers to make a gift from the maker's property if the gift is of a kind the maker made when they had decision-making capacity for the matter or might reasonably be expected to make and the value of the gift is reasonable in the circumstances.(183) However, in the advance personal plan appointing the decision maker, the maker may restrict the decision maker's authority to make gifts or, conversely, authorise the decision maker to make a gift not otherwise permitted by the Act.(184)

Also NTCAT, in the exercise of its jurisdiction under the Act, may authorise the decision maker to make a gift not otherwise permitted by the Act.(185) However, decision makers must not make gifts to themselves from the maker's property unless specifically authorised to do so in the advance personal plan appointing them the decision maker or authorised by NTCAT.(186)

The Act provides for a similar approach in relation to the maker's dependants. A decision maker with financial management powers may provide for the needs of the maker's dependants from the maker's property in the way the maker had done when they had decision-making capacity for the matter.(187) The decision maker may also make a provision for the needs of a dependant of the maker that the maker might reasonably be expected to make.(188) The value of such provisions has to be reasonable in the circumstances; unless NTCAT authorises the decision maker to make a greater provision in relation to a dependant.(189)

Note also however that the maker may, in the advance personal plan, either restrict the authority of the decision maker to provide for the needs of dependants, or authorise the decision maker to make provision for the needs of a dependant that would not otherwise be allowed under the Act.(190) Decision makers who are dependants of the maker must not make provision for their own needs from the maker's property unless they are specifically authorised to do so by the maker's advance personal plan.(191) However the Local Court may authorise a dependant decision maker to make provision for his or her own needs from the maker's property.(192)

We suggest that any provision made by a dependant decision maker, whether as a result of authority given to them by maker or by the Court, would have to be related to the decision maker's needs as a dependant and not otherwise. In making such a provision, the decision maker would be required to act honestly, and with care, skill and diligence as required by the Act and according to their fiduciary duty under the common law.(193)

10.7.1.6 South Australia and Western Australia

There are no provisions in the South Australian and Western Australian legislation dealing with the giving of gifts. Consequently, there is doubt as to whether enduring attorneys can give gifts from the maker's property to themselves and others. This matter is returned to below at 10. 7. 2.

10.7.2 The giving of benefits to themselves and others by attorneys

The common law in relation to powers of attorney was largely determined when powers of attorney were mostly used for business purposes and often gave detailed authorities to the attorney to act as agent for the maker and before enduring powers of attorney were legislated for. In 1893 the Privy Council noted in an appeal from Canada that:

[It was not] disputed that powers of attorney are to be construed strictly - that is to say, that where an act purporting to be done under a power of attorney is challenged as being in excess of the authority conferred by the power, it is necessary to shew that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument, either in express terms or by necessary implication.(194)

In a 1947 decision of the High Court, Dixon J pointed out that:

Prima facie, a power [of attorney], however widely its general words may be expressed, should not be construed as authorizing the attorney to deal with the property of his principal for the attorney's own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation. "The primary object of a power of attorney is to enable the attorney to act in the management of his principal's affairs. An attorney cannot, in the absence of a clear power so to do, make presents to himself or to others of his principal's property."(195)

Consequently, following the common law in New South Wales, as with gifts and as set out in 10. 7. 1. 1 above, the Powers of Attorney Act 2003 (NSW) precludes an enduring attorney from conferring a benefit on themselves or others unless the enduring power of attorney document itself expressly authorises the conferral of the benefit.(196) If the enduring power of attorney contains the prescribed expression to authorise the enduring attorney to confer benefits on themselves or other named persons to meet their reasonable living expenses, the effect of that expression is that the enduring attorney may meet the expenses they or the other named persons incurred for housing, food, education, transportation, medical care or medication. The benefit must be reasonable having regard to all the circumstances and, in particular, the maker's financial circumstances and the size of their estate.(197)

In Victoria an enduring guardian may give a gift of the maker's property to themselves, subject to the legislative provisions for the giving of gifts on behalf of the maker, as set out in 10.7.1.4 above.

In Queensland an enduring attorney may provide, from the maker's estate, for the needs of a person completely or mainly dependant of the maker without the maker having to include the power to do so in their enduring power of attorney. What the enduring attorney may provide must be no more than what is reasonable having regard to all the circumstances, in particular, the maker's financial circumstances. However, the maker can express an intention to provide more in the enduring power of attorney.(198)

In Tasmania the matter is dealt with on a case by case basis. The Guardianship and Administration Board may, on the application of an attorney or of its own motion and after a hearing, authorise the enduring attorney to make a gift of any of the maker's property to any person approved by the Board and for any purpose approved by the Board.(199)

In the Australian Capital Territory, an enduring power of attorney must expressly authorise the payment of reasonable living expenses for a named person. Such an authorisation will allow only for the payment of reasonable costs of housing, food, education, transportation, medical care and medication. When working out what are the reasonable costs of these matters and without limiting what must be considered, the maker's financial circumstances and the size of their estate must be considered. However, the maker can authorise for greater expense in the enduring power of attorney.(200)

Similarly, an enduring power of attorney must expressly provide from the needs of a person dependant on the maker to be provided the maker's estate. Again, what may be provided must not be more than what is reasonable considering all the circumstances, in particular, the maker's financial circumstances. However, the maker can authorise for greater expense in the enduring power of attorney.(201)

As already noted in 10.7.1.5 above, there are no provisions in the South Australian and Western Australian legislation empowering an enduring attorney to give a benefit to themselves or others from the maker's property. Consequently, it is suggested that the better and safer view is that, unless the enduring power of attorney specifically provides for that to be done or the authority to do so can "be found within the four corners of the instrument ... or by necessary implication", enduring attorneys in those States cannot give benefits to themselves or others. It could be argued in South Australia and Western Australia that as it is an enduring attorney's obligation to exercise their powers with reasonable diligence to protect the (social and emotional) interests of the maker, this may justify them giving gifts in the way legislated for in New South Wales, Victoria, Queensland and Tasmania, despite the limits on their powers referred to in the discussion of the common law, just set out, where the enduring power of attorney contains no express words.(202) The argument would be that the reasonable diligence provisions justify a "necessary implication". This argument is not available in relation to enduring attorneys appointed or recognised in the Northern Territory because the Powers of Attorney Act 1980 (NT) does not contain any reasonable diligence provisions.

In South Australia and the Northern Territory the Supreme Court and in Western Australia, WASAT, has the power to make an order "revoking or varying the terms" of an enduring power of attorney.(203) It could be argued that this language would allow those Courts or WASAT to add a term to an enduring power of attorney allowing attorneys to give benefits to themselves and others from the property of the now incapable maker of the enduring power of attorney.(204)

10.8 Registration of enduring powers of attorney or their equivalents

In Tasmania enduring powers of attorney must be registered before they may be exercised by the enduring attorney.(205) In the Northern Territory any advance personal plan may be registered at the Land Titles Office. However, any dealing in land conducted on the basis of an advance personal plan conferring authority to enter into the dealing has no effect unless the advance personal plan is registered.(206)

10.9 Recognition of enduring powers of attorney made elsewhere in Australia

All the Australian States (but not South Australia) and the two Territories recognise enduring powers of attorney, or their equivalents, made elsewhere in Australia and allow them to be exercised in relation to either real or personal property within their boundaries.(207) As already noted, in Tasmania an enduring power of attorney must be registered before it may be exercised. (208)

10.10 Effect on enduring powers of attorney of guardianship tribunals and courts making administration orders

Guardianship tribunals will not revoke an enduring power of attorney and appoint an administrator where there is no issue about the person's capacity when they made the enduring power of attorney. This is because the maintenance of the enduring power of attorney is seen as a less restrictive alternative than an administration order. Consequently in a 2010 case, WASAT refused to make an administration order where there was no real objection to the way the enduring attorneys were managing the, by then, incapable person's finances and when the evidence of the incapable person wanting to revoke her power of attorney arose only from a time when there was doubt that she had capacity.(209)

10.10.1 New South Wales

In New South Wales if the Guardianship Division of NCAT, Supreme Court or Mental Health Review Tribunal makes a financial management (administration) order, the effect is to suspend the enduring power of attorney during the currency of the order.(210) It should also be noted that when either NCAT or the Supreme Court conducts a review of either the making or the operation and effect of an enduring power of attorney, it may decide to treat the review as an application for an administration order and make such an order.(211)

10.10.2 Queensland

In Queensland if QCAT makes an administration order knowing that the person for whose estate it has made the order had previously made an enduring power of attorney that was in effect, the attorney may exercise the power only to the extent that QCAT authorises.(212) If the administrator becomes aware of the existence of an enduring power of attorney applicable to the person whose estate they are managing, they must advise QCAT and their administration is suspended pending a review of their appointment by QCAT.(213)

10.10.3 South Australia

In South Australia if the estate of the maker of an enduring power of attorney is placed under administration under the Mental Health Act 1977 (SA) or the Aged and Infirm Persons' Property Act 1940 (SA), the enduring attorney is accountable to the administrator as if they (the administrator) were the maker of the power of attorney. The administrator may vary or revoke the power of attorney as if they were the (still capable) maker.(214)

10.10.4 Tasmania

In Tasmania the Guardianship and Administration Board may not make an administration order in relation to the estate of a person who has made an enduring power of attorney so long as the enduring power of attorney is in force. There are two exceptions. First, the Board may make an administration order in relation to any part of the maker's estate that is not subject to the enduring power of attorney. Second, in an emergency the Board may make an administration order appointing the Public Trustee as administrator for up to 28 days. Such an order takes precedence over any enduring power of attorney.(215) However, the Board may, after a review initiated by itself or others, revoke an enduring power of attorney and appoint an administrator for the maker's estate.(216)This matter is dealt with below at 10. 11. 4. 2.

10.10.5 Victoria

In Victoria if VCAT makes an administration order for the maker of an enduring power of attorney, the attorney may exercise power under the enduring power of attorney only to the extent authorised by VCAT.(217)

10.10.6 Western Australia

In Western Australia if WASAT makes an administration order in relation to the estate of the maker of an enduring power of attorney, it has a number of options. WASAT may revoke or vary the power of attorney. Because WASAT may make limited forms of administration orders, it may revoke or vary the enduring power of attorney to remove any inconsistency between it and the administration order. However, where WASAT makes an administration order, the enduring attorney is accountable to the administrator as if the administrator were the maker of the power of attorney and the administrator has the same power to vary or revoke the power of attorney as the maker had when of full legal capacity.(218)

10.10.7 Australian Capital Territory

In the Australian Capital Territory, ACAT may revoke the enduring power of attorney when making an administration order.(219)

10.10.8 Northern Territory

As has already been noted in Chapter 8.10.1, the Guardianship of Adults Act 2016 (NT), which commenced on 28 July 2016, empowers the Northern Territory Civil and Administrative Tribunal (NTCAT) to make guardianship orders appointing guardians to make decisions about the financial matters of the person the subject of the order that NTCAT has given them authority in relation to.(220) Prior to the commencement of the Guardianship of Adults Act (NT), both the Supreme Court and, in a more restricted way, the Local Court had power to make administration orders in the Northern Territory. Under the new Act the Local Court's role has been subsumed into NTCAT and any (financial) management order made by it which was current at the commencement of the new Act became a guardianship order under the new Act.(221)

The Supreme Court's statutory jurisdiction under the Aged and infirm Persons Property Act (NT) was abolished by the repeal of that Act.(222) Any protection order made by the Supreme Court that was current at the commencement of the Guardianship of Adults Act (NT) became a guardianship order under that new Act, the person whose estate was the subject of the protection order became a person the subject of an order under the new Act and the manager became a guardian (for financial matters) under the new Act.(223)

We suggest that because it abolished the statutory jurisdiction of the Supreme Court to make protection orders and converted any current protection orders into guardianship orders for financial matters to operate under the provisions of the Guardianship of Adults Act 2016 (NT), the Legislative Assembly of the Northern Territory intended that all applications for orders to be made for the management of the estate of a person unable to manage their financial affairs be made to NTCAT with appeals to the Supreme Court only on questions of law and only with the leave of the Court.(224) However, the Legislative Assembly did not seek to reduce or abolish the Court's inherent parens patriae jurisdiction by clear words; and we do not see that the structure of the legislation creates a necessary implication that such a reduction or abolition of that jurisdiction was intended.

If there are problems with an advance personal plan and the maker is unable to amend or revoke it because of the lack of planning capacity, NTCAT has broad powers in relation to such plans including amending them if certain grounds are made out or replacing them with a guardianship order for financial matters in some circumstances.(225) This matter is taken up in much more detail at 10. 11. 8, below.

10.11 Role of guardianship tribunals and courts in reviewing the making and operation and effect of enduring powers of attorney

While most enduring attorneys carry out their responsibilities appropriately and generously, some do not.(226) Some take advantage of their position, others have difficulty carrying out their functions effectively and sometimes problems arise that attorneys need assistance to resolve. Consequently, guardianship tribunals and sometimes Supreme Courts have substantial powers to review the making as well as the operation and effect of enduring powers of attorney. Applications to these tribunals and courts to exercise of these powers will often be linked with applications to make an administration order. There are some examples of this below, particularly from Queensland and Western Australia in 10.11.2.2 and 10.11.6.2, below.

A 2005 Queensland case shows some of the more common ways an enduring attorney fails to carry out their responsibilities.(227) In 1997 an elderly woman appointed her son and her daughter as her joint attorneys under an enduring power of attorney. Her son had been assisting her with her financial affairs for more than a decade and she had become increasingly dependent on him. However in 2002 she revoked this power of attorney and appointed her son as her sole enduring attorney. This power of attorney authorised her son, as his mother's attorney, to enter conflict transactions, contract with himself and his relatives, conduct business and make and receive fees for professional services carried out by him for her.

Immediately afterwards, he began the process of selling his mother's unit, her only significant asset. On the day of settlement the son acknowledged a debt to his mother which his mother immediately forgave him. She also gave him another substantial gift of money straight out.

The then Guardianship and Administration Tribunal found that the elderly woman did not have the capacity to make the 2002 power of attorney. The Tribunal revoked that power of attorney. It also ordered that the joint attorneys were no longer authorised to act under the 1997 power of attorney as it had been overtaken by the Tribunal making an administration order. The Tribunal made the administration order because it found that the son had:
  1. unjustifiably refused to pay his mother's nursing home fees allowing arrears to accumulate,
  2. failed to pay his mother's pharmacy accounts despite reminders from the pharmacy,
  3. failed to pay his mother's fees to a plastic surgeon, for surgery carried out.(228)
Furthermore the Tribunal found that the evidence given in relation to the gift transaction was inadequate to rebut the presumption of undue influence which exists under the Powers of Attorney Act 1998 (Qld) or in equity, because of the fiduciary relationship that existed between the son and his mother as her enduring attorney.(229) The Tribunal considered that these matters constituted maladministration of the elderly woman's estate and appointed the Public Trustee as the administrator of her estate. (230)

10.11.1 New South Wales

In the 2010 case, Szozdz v Szozda, Barrett J of the Supreme Court of New South Wales, noting that the question of the mental capacity of a maker of an enduring power of attorney could arise in a range of legal proceedings before the Supreme Court, held that the Powers of Attorney Act 2003 (NSW) did not create an exclusive code for the Court and the then Guardianship Tribunal (now the Guardianship Division of NCAT) to deal with that issue. Consequently the Supreme Court retained its established jurisdiction to deal with that matter.(231) However, it is suggested that if the purpose of the application to the Court is simply to review an enduring power of attorney, the proper course is to make the application under the provisions of the Powers of Attorney Act 2003 (NSW). Nevertheless, if the application raises issues that NCAT lacks the jurisdiction to deal with, and the Court has that jurisdiction, then it is appropriate for NCAT to refer the application to the Court.(232)

10.11.1.1 Who may apply for and be party to a review?

In New South Wales both NCAT and the Supreme Court have the discretion decide whether or not to review either the making or the operation and effect of an enduring power of attorney when an application is made to them by any of the following "interested persons":
  1. an enduring attorney;
  2. the maker of the enduring power of attorney to be reviewed;
  3. a guardian or enduring guardian of the maker; or
  4. any other person who, in the opinion of NCAT or Court, has a proper interest in the proceedings or a genuine concern for the welfare of the maker.(233)

In another 2010 case, the then Guardianship Tribunal found, after a consideration of the relevant evidence, that the daughter of a woman who appointed her son, the applicant's brother, as her attorney under an enduring power of attorney was not an "interested person" so did not have the standing to apply for a review of the enduring power of attorney. The evidence was that she had periods of estrangement from her mother including recently. There were conflicts of financial interests between her brother and herself and she had no evidence to support the basis of her application, namely that her brother intended to use his position as enduring attorney to defraud their mother. The evidence did not give any support to the idea that the daughter's application was made to advance the welfare of her mother.(234)

In a 2011 case, the then Tribunal found that the applicant did not have a proper interest or a genuine concern for his mother's welfare when he applied to it to review the enduring power of attorney his mother had made. The then Tribunal gave detailed consideration to the meaning of "proper interest" in relation to bringing such an application to what is now NCAT.(235)

In addition to the applicant, each of the following is a party to such an application:
  1. any other attorneys under the enduring power of attorney;
  2. the maker of the enduring power of attorney to be reviewed; and
  3. any other person that NCAT or Court joins as a party.(236)

10.11.1.2 Reviewing the making of an enduring power of attorney - declarations of incapacity and invalidity

NCAT or the Court may make either or both of the following orders about the making of the enduring power of attorney:
  1. an order declaring that the maker did or did not have the mental capacity to make a valid power of attorney at the time they made the enduring power of attorney being reviewed, and
  2. an order declaring that the power of attorney is invalid (either in whole or in part) if the Tribunal or Court was satisfied that:
(a) the maker did not have the capacity necessary to make the enduring power of attorney,
(b) the enduring power of attorney did not comply with the other requirements of the Powers of Attorney Act 2003 (NSW) applicable to it, or
(c) the enduring power of attorney was invalid for any other reason, for example, the maker was induced to make it by dishonesty or undue influence.

10.11.1.3 Reviewing the operation and effect of an enduring power of attorney

If the review is about the operation and effect of an enduring power of attorney, NCAT or the Court may make one or more of the following orders if it is satisfied that either it would be in the best interests of the maker to do so or it would better reflect the wishes of the maker:(237)
  1. an order varying a term of, or a power conferred by, the power of attorney
  2. an order removing an attorney from office,(238)
  3. an order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office,
  4. an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated office,(239)
  5. an order directing or requiring any one or more of the following:

(a) that an attorney furnish accounts and other information to NCAT or the Court or to a person nominated by NCAT or the Court,(240)

(b) that an attorney lodge with NCAT or the Court a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power,(241)

(c) that those records and accounts be audited by an auditor appointed by NCAT or the Court and that a copy of the report of the auditor be furnished to NCAT or the Court,

(d) that the attorney submit a plan of financial management to NCAT or the Court for approval,

(f) an order revoking all or part of the power of attorney,(242) or

(g) such other orders as the NCAT or the Court thinks fit.(243)

Although he decided the case on the ground that Mrs Szozda lacked the mental capacity to make the relevant enduring power of attorney in Szozda v Szozda, Barrett J also noted that s 17 of the Powers of Attorney Act 2003 (NSW) is relevant to the scope of the authority given to an attorney under an enduring power of attorney. He noted that while s 17 does not define or describe the extent or quality of mental capacity required for the creation of a valid power of attorney, it removes from the scope of the authority given by the power of attorney the attorney's power to do acts, as attorney, the nature of which were beyond the maker's understanding because of the extent of their mental incapacity at the time of the creation of the power of attorney.(244) It is suggested that both NCAT and the Court could use s 17 to limit the scope of the powers of an attorney could exercise under an enduring power of attorney on the grounds that the nature of some acts were beyond the maker's understanding of because of the extent of the maker's mental incapacity at the time they made the power of attorney.

The term "such other orders as NCAT or the Court thinks fit" can include an order declaring that the maker of the enduring power of attorney lacked or lacks capacity because of mental incapacity at a specified time or during a specified period or for the time being. If such an order is made, any revocation of the enduring power of attorney made during a time covered by the order is ineffective.(245) If the order is that the maker lacks capacity through mental incapacity for the time being, the effect is, for the purposes of the operation of the power of attorney, that the maker lacks such capacity for any period specified in the order or until further order of NCAT or the Court making it.(246)

As has been noted at 10.10.1 above, when either NCAT or the Supreme Court conducts a review of either the making or the operation and effect of an enduring power of attorney, it may decide to treat the review as an application for an administration order and make such an order.(247)

10.11.1.4 Advice or directions

An enduring attorney may apply for advice or direction by NCAT or the Court on any matter relating to the scope of the attorney's appointment or the exercise of any function by the attorney under the power of attorney. When determining any such application, NCAT or the Court may decide to:
  1. approve or disapprove of any act proposed to be done by the attorney,
  2. give such advice or direction as it considers appropriate, or
  3. vary the effect of the enduring power of attorney or make any other order (set out above) it could make if it was dealing with an application to review the enduring power of attorney.(248)

It should be noted that for reasons set out in Smilevska v Smilevska, in New South Wales attorneys appointed under an enduring power of attorney may not act in proceedings in the Supreme Court at least in their capacity as attorneys for a maker who has now become; "a person under legal incapacity" and so cannot be a party in litigation in that Court without the Court appointing a tutor under the Uniform Civil Procedure Rules.(249) However the Court may appoint the attorneys as the person's joint tutors and they can conduct proceedings in the person's name in their capacity as court-appointed tutors.

10.11.2 Queensland

10.11.2.1 Who may apply for and be party to a review?

In Queensland both QCAT and the Supreme Court have the power to deal with applications for a declaration, order, direction, recommendation or advice about something in, or related to, an enduring power of attorney.(250) The following may make such applications about an enduring power of attorney:
  1. the maker of the enduring power of attorney,
  2. a member of the maker's family,(251) 1 an attorney under the enduring power of attorney,
  3. the Adult Guardian or Public Trustee, or
  4. a person the Tribunal or Court considers an interested person.(252)

10.11.2.2 Declarations of incapacity and invalidity

QCAT or the Court may make a declaration about a person's capacity at the time they made the enduring power of attorney or at any other relevant time.(253)

QCAT or the Court may also decide on the validity of an enduring power of attorney and may declare it invalid if satisfied that:
  1. the maker did not have the capacity necessary to make it,(254)
  2. the enduring power of attorney does not comply with the other requirements of the Powers of Attorney Act 1998 (Qld), or
  3. the enduring power of attorney is invalid for another reason, for example, the maker was induced to make it by dishonesty or undue influence.(255)

Nevertheless, if QCAT or the Court declares the document invalid, it may, at the same time, appoint one or more attorneys for the maker in effect making a new enduring power of attorney.(256) As an alternative either QCAT or the Court may, at the hearing about the maker's capacity to make the enduring power of attorney, also deal with an application that the maker also did not have the capacity to revoke the enduring power of attorney subsequently and in addition appoint an administrator and guardian for the incapable maker.(257)

10.11.2.3 Advice or directions

In relation to these applications, the powers of QCAT and the Court extend to giving directions or advice or making recommendations, order or declarations about:
  1. the interpretation of the terms of, or another issue involving an enduring power of attorney or advance health directive, or
  2. the exercise of an enduring attorney's power or another issue involving their power.(258)

10.11.2.4 QCAT's or the Court's other powers when reviewing the making, operation and effect of an enduring power of attorney

If QCAT or the Court considers it in the best interests of the maker, it may, authorise an enduring attorney, either generally or in a specific case, to undertake a transaction that they were not otherwise authorised to undertake.(259)

QCAT or the Court may, on its own initiative or on the application of the maker or an interested person order that:
  1. the enduring attorney files with it, and serves on the applicant, a summary of receipts and expenditure or more detailed accounts of dealings and transactions under the power of attorney for a specified period,
  2. the accounts be audited by an auditor appointed by QCAT to the Court and that a copy of the auditor's report be given to it and the applicant(260), or
  3. the enduring attorney present a plan of management for approval.(261)

10.11.3 South Australia

In South Australia the Supreme Court, but not SACAT, has the jurisdiction to deal with enduring powers of attorney. It will deal with applications from any person who, in its opinion, has a proper interest in the matter for orders 1, 2, 3 and 4 below.(262) The enduring attorney may apply for orders 3, 4 and 5 while the Court may make the orders set out in 1 to 6 below when dealing with any of these applications. The Court may, by order:
  1. require an enduring attorney (or former one) to file in the Court and serve on the applicant a copy of all records and accounts kept by the enduring attorney of dealings and transactions made by the enduring guardian when exercising the enduring power of attorney,
  2. require that such records and accounts to be audited by an auditor appointed by the Court and that a copy of the report of the auditor to be given to the Court and the applicant,
  3. revoke or vary the terms of the enduring power of attorney,
  4. appoint a substitute enduring attorney,(263)
  5. give advice and direction as to matters connected with the exercise of the enduring power of attorney or the meaning of its terms, and
  6. make such other order (declaratory or otherwise) as to the exercise of the enduring power of attorney, or the construction of its terms, as the Court thinks fit.(264)

10.11.4 Tasmania

10.11.4.1 Who may apply for and be party to a review?

In Tasmania the Guardianship and Administration Board may hold a hearing to review an enduring power of attorney of its own motion or on application by the enduring attorney, by or on behalf of a maker or by any other person who the Board believes has a proper interest in the matter.(265) While the Supreme Court does not have this jurisdiction, the Board may seek the Court's advice by referring a special case to it for its opinion. Also the Board's decisions under the Powers of Attorney Act 2000 (Tas) may be appealed to the Supreme Court.(266)

10.11.4.2 Orders the Board may make on review including declarations of incapacity and invalidity

After conducting the review the Board may, by order:
  1. vary a term of, or a power conferred by, the enduring power of attorney,
  2. appoint a substitute enduring attorney,
  3. appoint an administrator of the estate of the maker of the enduring power of attorney,
  4. declare that the maker did or did not have mental capacity to make a valid enduring power of attorney,
  5. revoke the enduring power of attorney and, if the maker is over the age of 18 years and the Board thinks fit, appoint an administrator of his or her estate,(267)
  6. make such other order as to the exercise of the power, or the construction of its terms, as it thinks fit, or
  7. declare that the enduring power of attorney is invalid if it is satisfied that:

(a) the maker did not have the mental capacity to make it,

(b) it does not comply with the other requirements of the Powers of Attorney Act 2000 (Tas), or

(c) it is invalid because the maker was induced to make it by dishonesty or undue influence or invalid for any other reason.(268)

When there is an urgent need to do so, the Board may suspend the operation of an enduring power of attorney and, on doing so, the Board may also:
  1. appoint the Public Trustee or any other person as a substitute attorney, and
  2. make such other orders, and give such other directions, as to the exercise of the power as it thinks fit.(269)

10.11.4.3 Advice or directions and the exercise of other powers

An enduring attorney may apply for advice or direction by the Board on any matter relating to the scope of their appointment or the exercise of any power by the enduring attorney under the enduring power of attorney. Such applications can be made formally or informally to the Board. The Board may require notice to be given or may exercise its powers without a hearing.

The Board may then exercise a wide range of powers. It may:
  1. approve or disapprove of any act proposed to be done by the attorney,
  2. give such advice or direction as it considers appropriate,(270) and
  3. vary the effect of the enduring power of attorney, or
  4. make any other order that it could have made on an application to review the enduring power of attorney.
The Board also has power, of its own motion, to direct, or offer advice to, an enduring attorney in respect of any matter arising under the power of attorney.

It also may, of its own motion and without a hearing:
  1. require an attorney to lodge with it a copy of all records and accounts kept by the enduring attorney of dealings and transactions made by them under the enduring power of attorney,
  2. require those records and accounts to be audited by an auditor appointed by it and require a copy of the report of the auditor to be given to it, or
  3. require the enduring attorney to submit a plan of financial management to the it.(271)

10.11.5 Victoria

Note that the jurisdiction of VCAT set out below in relation to enduring powers of attorney applies also to enduring powers of attorney made under the now repealed provisions of the Instruments Act 1958 (Vic).(272)

In Victoria on application by a person referred to in 10. 11. 5. 1, or on its own initiative in any hearing before it, VCAT may make an order about any one or more of the following matters in relation to an enduring power of attorney:
  1. any matter for or with respect to an attorney's power under the enduring power of attorney including the following;
    (i) the scope of the power of attorney,
    (ii) the exercise of the power of attorney,

    1. the effect of any failure to comply with the method of execution of enduring powers of attorney or of instruments of revocation of enduring powers of attorney required by the Powers of Attorney Act 2014 (Vic);
    2. the validity of the enduring power of attorney;
    3. the validity of a transaction by an attorney under the enduring power of attorney if VCAT is satisfied there has been a failure to comply with duties of attorneys or requirements of Part 6 of the Act, or for any other reason;
    4. the lodgement with VCAT of accounts or other documents relating to the exercise of the enduring power of attorney over a specified period by the attorney responsible under this Act for keeping them;
    5. the examination and auditing of accounts or other documents relating to the exercise of the enduring power of attorney over a specified period, including;
      (i) determining the person to be responsible for examining or auditing the accounts or other documents; and
      (ii) whether the person responsible under subparagraph (i) for carrying out the examination or audit should be paid and the amount of any such payment;
    6. giving a report on any examination and audit conducted under an order under paragraph 6 to;
      (i) VCAT; and
      (ii) the applicant or any other person ordered by VCAT;
    7. any other matter VCAT considers necessary in relation to the enduring power of attorney.(273)

The orders that VCAT may make are set out in 10.11.5.3, below.

10.11.5.1 Who may apply for an order?

The following may apply to VCAT for an order in relation to any of the matters listed 1 to 8 above:
  1. an attorney under the enduring power of attorney,
  2. the maker of the enduring power of attorney,
  3. the Public Advocate,
  4. the nearest relative of the maker(274), or
  5. another person whom VCAT is satisfied has a special interest in the affairs of the maker.(275)

The Act specifically provides that nothing in its provisions is to be taken to prevent a person who meets the criteria for applying for an order from applying to VCAT for an order in circumstances where more than one attorney has been appointed under the enduring power of attorney and it is impractical or impossible for the attorneys under the enduring power of attorney to exercise power in the manner required by the enduring power of attorney or by this Act.(276)

10.11.5.2 Who is a party and who is entitled to notice of different aspects of the hearing and determination of the application?

The following are parties to the hearing of an application in relation to an enduring power of attorney:
  1. the applicant, namely one of the persons listed in 10.11.5.1 above;(277) 1 (if not the applicant) the maker of the enduring power of attorney;
  2. (if not the applicant) any attorney under the enduring power of attorney(278); and
  3. any person joined as a party to the proceeding by VCAT.(279)

However, the applicant is required to serve a copy of the application on the maker of the enduring power of attorney and any attorney under the enduring power of attorney as well as any other person VCAT decides must be notified. In addition VCAT may decide that particular persons on the following list should also be served with a copy of the application by the applicant:
  1. any guardian, alternative guardian of the maker, administrator, domestic partner(280), the primary carer or the nearest relative(281) of maker;
  2. the Public Advocate; or
  3. any other person.(282)

The Principal Registrar of VCAT is required to provide those entitled to be served with a copy of the application in a particular case with notice of the hearing and VCAT must provide then with a copy of the order in the matter.(283)

10.11.5.3 Orders VCAT may make when reviewing enduing powers of attorney

When dealing with an application or on its own initiative, VCAT may do one or more of the following:
  1. revoke all or part of the enduring power of attorney;
  2. revoke the appointment of an attorney under the enduring power of attorney;
  3. vary the effect of the enduring power of attorney;
  4. suspend the enduring power of attorney for a specified period, either generally or as to a specified matter;
  5. authorise or validate a conflict transaction;(284)
  6. make any other order it considers necessary in relation to the enduring power of attorney; or
  7. do any other thing that VCAT is required or permitted to do by this Act.(285)

Note that there are a number of further provisions in the Powers of Attorney Act 2014 (Vic) dealing with what VCAT must consider before it may make some of the orders in this list. These are set out 10.11.5.4-7, below.

10.11.5.4 Legislative criteria to be considered in an application or a VCAT initiated hearing in relation to revoking an enduring power of attorney

Before it may revoke the appointment of an attorney under the enduring power of attorney, VCAT must be satisfied that:
  1. the attorney is not complying with provisions of the Act that relate to enduring powers of attorney; and
  2. the maker does not have decision-making capacity in relation to making an enduring power of attorney giving the same power.(286)

10.11.5.5 Legislative criteria to be considered in relation to compliance with execution requirements

VCAT has to power to decide that an enduring power of attorney is valid even though the requirements for execution of the power of attorney under the Act were not complied with. However, it may not do so unless is satisfied that:
  1. the maker and attorney both intended the document to be an enduring power of attorney; and
  2. at the time the document was signed, the maker had decision-making capacity in relation to the making of the enduring power of attorney; and
  3. the maker, either signed the document freely and voluntarily; or freely and voluntarily directed the person who signed the document for the maker to do so, and was present when that person signed the document.(287)

VCAT must apply the same considerations when deciding whether or not a revocation of an enduring power of attorney is valid.(288)

10.11.5.6 Legislative criteria to be considered in relation to whether or not an enduring power of attorney was valid.

When dealing with the issue of validity, VCAT must not make an order declaring that an enduring power of attorney is invalid unless it is satisfied that:
  1. the maker did not have decision-making capacity in relation to making the enduring power of attorney at the time the enduring power of attorney was made; or
  2. at the time the enduring power of attorney was made it did not comply with the requirements of the Act; or
  3. dishonesty or undue influence was used on the maker to make the enduring power of attorney; or
  4. the enduring power of attorney was legally invalid when entered into.(289)

If VCAT makes an order declaring that an enduring power of attorney is invalid under section 116(1)(c), the enduring power of attorney is void from its commencement.(290)

10.11.5.7 Advisory opinions

VCAT may give an advisory opinion on any matter relating to an enduring power of attorney that is referred to it by application or on its own initiative.(291) The scope of this power is apparently very broad, but the limits of its reach may become apparent in future cases.

10.11.6 Western Australia

In Western Australia, under the Guardianship and Administration Act 1990 (WA), WASAT may, when application is made to it, make certain orders in relation to enduring powers of attorney.(292) The Act does not affect the Supreme Court's inherent jurisdiction.(293) However, WASAT takes the view that it was given a general supervisory jurisdiction over enduring powers of attorney that it may exercise even after the maker of the power of attorney has died.(294)

10.11.6.1 Who may apply for the intervention of WASAT?

Anyone who, in the opinion of WASAT, has a proper interest in the matter may apply to WASAT for the limited kinds of orders listed below. When dealing with an application, WASAT may hear only the applicant's case making an order (make an ex parte order) or give directions as to who shall be given notice of the application and who shall be entitled to be heard before WASAT makes its order.(295)

10.11.6.2 Orders WASAT can make

The orders WASAT may make in dealing with such an application are limited to a degree. They do not include the power to make declarations as to the capacity of a maker of an enduring power of attorney or as to the validity of an enduring power of attorney.(296) However, WASAT may revoke a power of attorney on application.(297) Such applications are often linked with applications to WASAT to make an administration order in relation to the estate of the maker of the enduring power of attorney.(298) These matters are taken up in the following paragraphs.

The orders that WASAT may make on the application of a person with a proper interest, including an enduring attorney, to intervene in relation to an enduring power of attorney are orders:
  1. requiring the enduring attorney to file with it, and serve on the applicant, a copy of all records and accounts kept by the enduring attorney of dealings and transactions made by the enduring attorney in connection with the power,(299)
  2. requiring such records and accounts be audited by an auditor appointed by it and requiring a copy of the report of the auditor to be given to it and the applicant for the order, or
  3. revoking or varying the terms of an enduring power of attorney, appointing a substitute enduring attorney or confirming that a person appointed to be the substitute enduring attorney has become the enduring attorney.(300)
In addition to the orders just listed, enduring attorneys may apply to WASAT for directions as to matters connected with the exercise of the power of attorney or the construction of its terms.(301)

As already noted, applications to it to intervene in enduring powers of attorney are often linked with other applications, particularly applications for administration orders, so that WASAT hearing the applications together can make a range of orders to meet the now incapable current person's needs.(302)

An example of this is a case in which in 2013 CS appointed her husband and her daughter LE as her joint and several attorneys under an enduring power of attorney. CS also appointed her son IS as her alternative attorney under the same enduring power of attorney. In February 2014, CS appointed LE as her enduring guardian and IS as her alternative enduring guardian. In March 2014, another of CS's sons, JS, applied to WASAT to be appointed administrator of his mother's estate. He requested an urgent hearing because his siblings LS and IS (IS had taken over as a joint and several attorney from his dying father) were acting under an enduring power of attorney which he alleged was invalid because CS lacked capacity at the time she made it.

After considering the evidence, which was equivocal on the question of CS's capacity when she made the enduring power of attorney, but clear on her current lack of capacity to manage her financial affairs, WASAT made an administration order appointing the Public Trustee with a specific role of investigating JS's allegation that LS and IS had taken cash from CS's and her by then late husband's property. WASAT ordered the Public Trustee to report back on the results of its investigation at the review of the administration order set down for 2015. WASAT did not revoke the enduring power of attorney and advised that the question of whether the enduring power of attorney was an appropriate vehicle for the ongoing management of CS's financial affairs would be considered at the review.(303)

When the review came on for hearing in 2015, WASAT took the view that it was in the best interests of CS that LE be freed from her role as attorney because of its view that the evident conflict between the siblings must impact on her capacity to care for her mother, given the stress the conflict had generated. WASAT also noted that without the care provided by LE, CS would need to live in a nursing home and that that was not her wish. However WASAT did not think it appropriate, in the circumstances, for the enduring power of attorney to continue and revoked it on that ground. The advice of the Public Trustee was that it was not possible to prove there was cash on the property as alleged by JS. WASAT took the cash misappropriation allegation as a symbol of the toxic nature of the relationship between the siblings. Because of the great animosity, with no prospect of resolution, between LS and IS on the one hand and JS on the other, WASAT reappointed the Public Trustee as administrator of CS's estate.(304)

The Guardianship and Administration Act 1990 (WA) requires that a person must have reached 18 years of age and have "full legal capacity" before they may create an enduring power of attorney (or an enduring power of guardianship).(305) In a 2011 case, a panel of WASAT led by its President, Chaney J, stated that for a person to make a valid appointment under an enduring power of guardianship they must, at the time of the appointment, understand the nature and effect of the formal document they are signing and the nature and extent of the powers they are entrusting to their substitute decision-maker. And further, that a person with full legal capacity to make a valid enduring power of guardianship "will have a clear understanding of the nature and effect of the document and its implications".(306) In that case, WASAT noted that the Act empowered it to revoke or vary the enduring power of attorney, and in view of its conclusion that the enduring power of attorney was not valid, made an order to that effect.(307) WASAT revoked both the enduring power of guardianship and the enduring power of attorney and appointed a guardian and an administrator for the person who make both appointments.

10.11.7 Australian Capital Territory

In the Australian Capital Territory, ACAT is empowered to make a number of orders in relation to enduring powers of attorney or their makers when the maker has lost capacity (has impaired decision-making capacity). ACAT may make these orders when an application is made to it, but it may act on its own initiative when it is hearing a matter under the Guardianship and Management of Property Act 1991 (ACT).(308) The Supreme Court may deal with applications about the powers of an enduring attorney while the Public Trustee and the Public Advocate also have roles.(309)

10.11.7.1 Who may apply for and be party to a review?

The following may make applications to ACAT, as interested persons, in relation to enduring powers of attorney but usually only when the maker of the power of attorney has impaired decision-making capacity:
  1. the enduring attorney,
  2. the maker,
  3. a relative of the maker,(310)
  4. the Public Advocate,
  5. the Public Trustee,
  6. the maker's guardian,
  7. the manager (administrator) of the maker's estate, or
  8. any other person, with the leave of the Tribunal.(311)

In addition ACAT may conduct a review of its own initiative.

10.11.7.2 Declaration of incapacity

On application, ACAT may declare whether the maker of an enduring power of attorney has decision-making capacity or impaired decision-making capacity.(312)

10.11.7.3 Advice, directions or other orders

When dealing with an application at a time when the maker of an enduring power of attorney has impaired decision-making capacity, ACAT may, by order:
  1. give a direction, not inconsistent with Powers of Attorney Act 2006 (ACT) or the enduring power of attorney, that the enduring attorney do or not do a stated act,
  2. direct the enduring attorney to produce stated books, accounts or other records of transactions carried out by the attorney for the maker,(313) 1 revoke the enduring power of attorney, or part of it or(314)
  3. make a declaration about the interpretation or effect of the enduring power of attorney.(315)
If ACAT revokes the enduring power of attorney, it may appoint either a guardian or administrator (manager) for the estate of the maker.(316) Also when the maker of the power of attorney has impaired decision-making capacity and ACAT is satisfied that it is in the interests of the maker to remove the attorney, it may remove an attorney under the enduring power of attorney.(317)

10.11.7.4 Access to the maker of an enduring power of attorney who has impaired decision-making capacity

When the maker of an enduring power of attorney has impaired decision-making capacity, the Public Advocate is entitled to reasonable access to them.(318) Also, ACAT may grant an interested person, as defined in 10. 11.7. 1 above, access to the maker, with or without conditions, if it is satisfied that an enduring attorney has denied the person access to the maker and it is reasonable to allow the access.(319)

10.11.8 Northern Territory

On 29 July 2016, the Northern Territory Civil and Administrative Tribunal (NTCAT) replaced the Local Court as the tribunal with a broad jurisdiction to hear and determine matters relating to advance personal plans and other matters arising under the Advance Personal Planning Act (NT).(320) Also on that day NTCAT commenced its jurisdiction to make guardianship orders under the Guardianship of Adults Act (NT).(321) This means that since 29 July 2016 NTCAT, has had jurisdiction under the Advance Personal Planning Act (NT) to make declarations and orders about a range of matters relating to advance personal plans. These are set out in the next paragraph. In addition, while NTCAT is exercising it jurisdiction under the Guardianship of Adults Act (NT) to appoint guardians, it will from time to time, need to exercise its jurisdiction revoke or vary advance personal plans and dismiss the decision maker appointed by the maker of the plan or change, vary or amend the scope of authority of the decision maker appointed under the plan should now have in the light of the current circumstances and needs of the maker of the plan.

When dealing the matters arising in applications before it under both Acts, NTCAT must act in accordance with the decision-making principles set out in the Advance Personal Planning Act (NT) as if it were a decision maker and the guardianship principles set out in the Guardianship of Adults Act (NT).(322)

Among other things, it may make declarations as to one or more of the following which relate to financial matters and, for the purposes of this part of this chapter, personal matters as well:
  1. whether the maker of the advance personal plan has impaired decision-making capacity for a matter;
  2. whether an advance personal plan is or is not valid;
  3. whether a statement in an advance personal plan about health care action is an advance consent decision or an advance care statement;
  4. whether an advance consent decision or advance care statement is or is not applicable in a particular circumstance;
  5. whether or not a decision maker has authority for a matter;
  6. the scope of the authority of a decision maker;
  7. any other matter relating to the validity, effect or meaning of an advance personal plan (including an advance consent decision, advance care statement or appointment in the plan);
  8. any other matter relating to the making of a consent decision about health care action for an adult who has impaired decision-making capacity for making the consent decision;
  9. and the "catch-all" provision any other matter arising for determination under the Act.(323)

NTCAT may also make orders as to the exercise by a decision maker of their decision maker's authority. Without limiting what other orders NTCAT may be able to make in relation to the exercise by a decision maker of their decision maker's authority, it may make orders:
  1. as to how the decision maker may, must, or must not, exercise their decision maker's authority so as to comply with their obligation act in accordance with the decision-making principles set out in the Act;(324)
  2. if 2 or more decision makers who are appointed to exercise their authority for a matter jointly are unable to reach a unanimous decision as required by the Act - to facilitate the resolution of their differences;(325)
  3. authorising the decision maker to act in certain ways in relation to the maker's property;(326)
  4. authorising the decision maker to make a gift not otherwise permitted;(327)
  5. authorising the decision maker to make a provision for the needs of a dependant not otherwise permitted;(328)
  6. approving reimbursement for the decision maker from the maker for reasonable costs incurred in acting as decision maker;(329)
  7. approving remuneration for the professional decision maker from the maker;(330)
  8. approving reimbursement or remuneration to a person who is the or a decision maker for the maker, but who provides other services to the maker;(331)
  9. if the maker has 2 or more agents - to facilitate a reasonable and workable division of decision-making authority between the agents.(332)

Consistent with the policy of the Act to give as much effect as possible to the views of the maker, NTCAT must not make an order, set out in the last paragraph, requiring or permitting the decision maker to act contrary to an express provision of the advance personal plan by which the decision maker was appointed.(333)

In making an order of the kind set out in the last paragraph, NTCAT may make an order about the exercise of the decision maker's authority generally or for a particular circumstance.(334)

If a person has ceased to be a decision maker for a maker of a plan, NTCAT may make the orders it considers appropriate to provide for:
  1. if maker is still alive - the orderly transfer of decision-making authority from that person to the maker or to another agent for the adult (as appropriate); or
  2. if the maker has died - the orderly transfer of the maker's estate to the executor or administrator of the estate.(335)

Where the maker of an advance personal plan no longer has planning capacity, NTCAT may amend or revoke the plan. However, NTCAT may not amend the plan unless one or more of the grounds for amending set out below applies:
  1. giving effect to the plan is, for all practical purposes, impossible;
  2. giving effect to the plan is unlawful;
  3. giving effect to the advance care statement in the plan would impose a burden on another person that is so unreasonably onerous that it is justifiable to override the maker's wishes;
  4. there is no reasonable possibility the maker would have intended the plan to have the effect that it has or will have;
  5. giving effect to the plan would be so unreasonable that it is justifiable to override the maker's wishes;
  6. when making the plan (or an amendment of it) the maker:
    1. was not acting voluntarily; or
    2. was adversely affected by the dishonesty or undue influence of another person;
    3. a decision maker appointed by the plan has failed to comply with s. 21(1) of the Act;
    4. there has been a major change in circumstances since the plan was made;(336)
    5. the maker has 2 or more agents and an amendment of the plan is necessary to facilitate a reasonable and workable division of decision-making authority between the agents.(337)
NTCAT's jurisdiction to amend an advance personal plan is further circumscribed by having to be satisfied not only that grounds for amending the plan exist, but also that any amendment is reasonably necessary to address those grounds and that the maker would agree to the amendment if they had planning capacity.(338) In addition, NTCAT may amend the plan so as to terminate the appointment of a person as a decision maker only if satisfied that doing so is the only practicable way to address the grounds for amendment.(339) NTCAT's jurisdiction to revoke an advance personal plan is similarly circumscribed. It must be satisfied not only that grounds for amending the plan exist, but also that revocation is the only practicable way to address those grounds to address those grounds. Further NTCAT must be satisfied that the maker would agree to the revocation if they had planning capacity.(340) In relation the resignation of a decision maker appointed under a plan see, 10.6.1.6, above. There is a small role for NTCAT in certain circumstances.(341)

10.11.8.1 What matters must NTCAT take into account when considering making a guardianship order where the person the subject of the application has already made an advance personal plan

As has been noted in the last section, in the exercise of its jurisdiction of the Advance Personal Planning Act (NT), NTCAT may revoke an advance personal plan, dismiss a decision maker appointed by the maker of an advance personal plan or make changes to the provisions of the plan if certain criteria were met. Situations will arise in which it will be appropriate for NTCAT to take such actions while, at the same time make a guardianship order.

When NTCAT forms the view that such a situation exists and decides to make a guardianship order, it must act in accordance with the guardianship principles set out in the Guardianship of Adults Act (NT) when making such an order.(342) These principles require NTCAT to exercise its decision maker's authority in the best interests of the person the order is about.(343)In determining what is in the best interests of that person NTCAT must:
  1. seek to obtain the current views and wishes of the person the subject of the application for a guardianship order, as far as it is practicable to do so; and
  2. take into account all relevant considerations; and
  3. weigh up the relevant considerations, giving each of them the weight that NTCAT reasonably believes is appropriate in the circumstances.(344)

This obligation on NTCAT is consistent with the thrust of its obligation under the Advance Personal Planning Act (NT) to seek out the person's current views and wishes and to take account of them and the person's previously stated views about particular personal or financial matters (as defined in that Act).(345)

In determining what is appropriate in the circumstances, NTCAT must ensure that it exercises its decision maker authority in a way that is the least restrictive of the person's freedom of decision and action as is practicable and provides the person with as much support as is practicable to make their own decisions.(346)

To assist NTCAT, and guardians appointed by it, to take all relevant considerations into account when determining what is in the best interests of the person (NTCAT is considering appointing a guardian for or the appointed guardian is making a substitute decision for), the Act sets out a non-exclusive list of relevant considerations as follows:
  1. the person's current views and wishes and previously stated views and wishes;
  2. any views and wishes stated by an interested person for the person;(347)
  3. maintenance of the person's freedom of decision and action to the greatest extent practicable;
  4. the ability of the person to be as independent as is practicable;
  5. protection of the person from harm, neglect, abuse and exploitation;
  6. providing the person with appropriate care, including health care;
  7. promoting the adult's happiness, enjoyment of life and wellbeing;
  8. the ability of the person to achieve their maximum physical, social, emotional and intellectual potential;
  9. the ability of the person to live in the general community and take part in community activities;
  10. maintenance of the person's right to be treated with dignity and respect;
  11. the ability of the person to maintain their preferred living environment and lifestyle;
  12. maintenance or creation of a support network for the person;(348)
  13. protection of the person's property and financial resources from loss, damage or misuse;
  14. protection of the person's right to confidentiality of information about them

10.11.8.2 Transitional provisions relating to enduring powers of attorney made under the Powers of Attorney Act (NT)

As has already been noted, since 17 March 2014, enduring powers of attorney cannot be created in the Northern Territory. However, the Supreme Court has the power to deal with enduring powers of attorney, made before that date, at any time after the maker of the enduring power has become legally incapacitated. The Public Trustee or any agent of the maker of an enduring power of attorney may apply to the Supreme Court for any of the following orders - an order:
  1. requiring the enduring attorney to file in the Court and serve on the applicant a true and accurate record of any transaction entered into by the enduring attorney charging or otherwise disposing of, whether for valuable consideration or otherwise, any of the assets of the maker,
  2. requiring such records as referred to in the order to be audited by an auditor appointed by the Court, and requiring a copy of the report of that auditor to be given to the Court and the applicant , or
  3. revoking or varying the terms of the enduring power of attorney in such manner as the Supreme Court thinks fit, including appointing the Public Trustee or another person as a substitute enduring attorney, and
  4. Appointing the Public Trustee as a substitute enduring attorney.(349)

Also, as already noted in 10.6.1.6, an enduring attorney appointed under the Powers of Attorney Act (NT) cannot retire without the leave of the Supreme Court. They must still seek that leave.(350)

10.12 Liability for compensation and criminal liability

The Powers of Attorney Act 2014 (Vic) has broken new ground in Australia at least by empowering both VCAT and the Victorian Supreme Court to order an attorney under an enduring power of attorney to compensate the maker for a loss caused by the attorney contravening any provision of the Act relating to enduring powers of attorney when acting as attorney under the power of attorney.(351)

The Act also makes it a criminal offence to for a person to obtain dishonestly:
  1. an enduring power of attorney,
  2. the revocation of an enduring power of attorney, or
  3. use an enduring power of attorney
either to obtain financial advantage for the person or another person or to cause loss to the maker or another person.(352)

10.13 Supportive attorneys

10.13.1 Introduction

The concept of supportive attorneys was introduced into Victoria by the Powers of Attorney Act 1958 (Vic) which came into force on 1 September 2015. The role of a supportive attorney is to support the person who appoints them to make and then give effect to (act on) to decisions relating to financial or personal matters. The Act describes a supported decision as being a decision about a matter that, under a supportive attorney appointment, the supportive attorney is authorised to support the principal in making.(353)

As the Attorney-General pointed out in his second reading speech introducing the legislation:

The availability of such appointments will help promote autonomy and dignity for people with a disability who have the capacity to make various decisions for themselves, provided they have support to make and give effect to those decisions. It provides legislative acknowledgement that mechanisms other than substituted decision making can be used to allow people with a disability to engage in activities requiring legal capacity and to make and give effect to decisions that affect their lives.(354)

As the Attorney-General also noted in his second reading speech, the Act allows an appointor to specify whom they want to support them in their decision-making, the types of decisions they want support to make and the types of support they want in order to make and give effect to those decisions. The Attorney-General suggested that this would also provide certainty for third parties, allowing them to deal with a supportive attorney more confidently than if the relationship were informal, and thus better enabling appointors to have their wishes and decisions respected and implemented.(355)

10.13.2 Who may appoint a supportive attorney?

In order to appoint a supportive attorney, a person must be 18 years or over and have decision-making capacity in relation to making a supportive attorney appointment they made. We suggest that a useful approach to the assessment of capacity to appoint a supportive attorney is to adopt the same schema of the "why", the "what", the "who" and the "freedom" of the appointment. In doing so, given that the intent of this legislation is to afford people with disability the autonomy and dignity aspired to in Article 12 of CRPD, it is important not to make the bar for capacity too high.

Some thought needs to go into the "why" of the appointment of a supportive attorney, particularly in considering who might be appropriate candidates for making such an appointment. This goes to the common law presumption of capacity and the principle of preference for least restrictive and informal means of support for people with disability. There may well be pressure exerted on people with decision-making disabilities, and possibly those with disabilities not affecting their decision-making capacity, to make such appointments whether they want to or not. There may be an expectation that long term informal arrangements that have worked well in the past be formalised, raising the unwanted need to choose between informal supporters for the role of supportive attorney (or attorneys). Importantly, the appointment should not replace advance planning, which is advisable for all, with or without disability, particularly in light of provisions under s 116(2) of the Act where VCAT may make an order about the effect of the appointor not having decision-making capacity on the supportive attorney appointment.

In regards to the "what" of the appointment, in order to have the required decision-making capacity, the appointor must understand the following matters:
  1. that the appointment enables the appointor to make and give effect to their own decisions with support; and
  2. that the appointment allows the appointor to choose a person to support them to make and give effect to their own decisions; and
  3. that supported decisions are decisions of the appointor and not the supportive attorney; and
  4. when the appointment commences; and
  5. that the appointor may revoke the appointment at any time when they have decision-making capacity in relation to making the supportive attorney appointment.(356)
It is essential that anyone assessing capacity to appoint a supportive attorney simplifies the above task and provides support per se to the person when assessing their ability to make an appointment. Otherwise we risk making the bar so high that we preclude the very people who may benefit from supported decision making. In regards to the "who" of decision-making, similar considerations regarding the appointor's ability to discern trustworthiness of the potential supportive attorney, as suggested with enduring powers of attorney appointments, remain relevant here. For example, the nature and history of the relationship between the appointor and the potential supportive attorney and whether the appointment is consistent with other appointments are important considerations.

The Act provides some safeguards in regards to the "freedom" of the appointment. Under an appointment of a supportive attorney a person is not able to authorise another person to coerce, intimidate or unduly influence the person making the appointment into a particular course of action.(357) Additionally, supportive attorneys must act honestly, diligently, and in good faith, not use the position for profit; and avoid acting where there is or may be a conflict of interest.(358)

Safeguards in this regard are essential. Kohn et al have suggested:

without more empirical evidence as to how supported decision-making functions in practice, it is too early to rule out the possibility it may actually disempower individuals with disabilities by facilitating undue influence by their alleged supporters.(359)

Bigby et al(360) undertook an exploratory qualitative study into processes and dilemmas that arise in providing supported decision making to people with cognitive disability, with focus on people with intellectual disability and acquired brain injury. In-depth interviews and focus groups were held with 46 participants; including people with cognitive disability, family members, disability support workers and legal professionals. Some of the dilemmas and tensions identified included difficulties remaining neutral, managing conflicting perspectives amongst differing supporters, balancing rights with risk and best interests, resource constraints, managing power differentials and the risk of undue influence.

10.13.3 Who may be appointed a supportive attorney?

Only physical persons and not corporations or other bodies that have legal personality are eligible to be appointed as supportive attorneys. They must be:
  1. 18 years of age or over; and
  2. not an insolvent under administration; and
  3. if to be a supportive attorney for financial matters--
    (i) have not been convicted or found guilty of an offence involving dishonesty; or
    (ii) if the person has been convicted or found guilty of an offence involving dishonesty, has disclosed the conviction or finding of guilt to the appointor and the disclosure of the conviction or finding of guilt has been recorded in the supportive attorney appointment form; but
  4. cannot be a care worker, a health provider or an accommodation provider for the appointor.(361)
An appointor may appoint more than one person to be a supportive attorney. However if they do, they should specify the matters for which each supportive attorney is to act.(362) Alternative supporting attorneys may also be appointed.(363)

There are detailed provisions for the making of appointments of supporting attorneys. These include the appointor signing the prescribed appointment form in the presence of two witnesses who also sign the form in the presence of the appointor. There are limitations on who the witnesses may be and they must certify in writing on the appointment form at the time of signing the form that the appointor appeared to the witnesses to have decision-making capacity in relation to the making of the supportive attorney appointment.(364) For the appointment to be effective, the supportive attorney(s) must sign a statement of acceptance in the prescribed form. The supportive attorney must also sign in the appointment form that they:
  1. are eligible to act as a supportive attorney; and
  2. understand the obligations of a supportive attorney under the Act and the consequences of failing to comply with it; and
  3. undertake to act in accordance with the Act.

That signing by the supportive attorney of acceptance of their appointment and related matters must also be witnessed and the witness must sign the relevant section of the appointment form to that effect.(365)

There are provisions for the appointment to be effective as to an alternative supportive attorney and as to the revocation of an appointment of a supportive attorney.(366)

10.13.4 Commencement of appointment and powers, duties and obligations of supportive attorneys

The appointor may specify in the appointment one of the following as the commencement of the appointment:
  1. the time from which it is to operate,
  2. the circumstance in which it is to operate, or
  3. the occasion on which it is to commence.

If the appointor does not provide for one of these specifications in the appointment form, then the appointment will commence at the time that it is made according to the requirements in the Powers of Attorney Act 2014 (Vic) set out briefly above in 10.3.3.(367)

When an appointment of a supportive attorney begins, it will give the supportive attorney or attorneys appointed powers in relation to the financial or the personal matters of the appointor, or both matters, to the extent set out in the appointment form. For a single supportive attorney powers given could be in relation to all matters, whether financial or personal. However, the matters in relation to power to act as a supportive attorney may be specified in the appointment form and thus limited to those specified. If more than one supported attorney is appointed, each of them appointed will have power to act separately, but only in relation to those matters that are specified in relation to their own appointment.

The wide range of financial and personal matters for which those appointed may be appointed to act are set out in 10.2 above. It should be noted that the powers to act that supportive attorneys have are very limited and must be specifically given in the appointment form. The powers available to be given are the:
  1. Information power;
  2. Communication power; and
  3. Power to give effect to decisions
The information power confers the supportive attorney with the power to either access, collect or obtain any personal information about the principal from any person, or to assist the principal in doing so. The information must be relevant to a supported decision about a matter that the appointor has appointed the supportive attorney to support them in making and must be information that the appointor may collect or obtain lawfully. Note that those from whom such information is properly sought under the Act are authorised under the Act to disclose personal information about the appointor to a supportive attorney who is acting under the supportive attorney appointment.(368)

Also under the information power, a supportive attorney may disclose any information about the appointor given to them in the exercise of their information power for the purpose of anything that is relevant and necessary to the supportive attorney carrying out their role as supportive attorney, or any legal proceeding under the Act or any report of a legal proceeding under this Act or any other lawful reason.(369)

In giving the supportive attorney the communication power, the appointor may authorise the supportive attorney to communicate any information about the appointor that is relevant or necessary to the making of or giving effect to a supported decision or to communicate or to assist the appointor to communicate a supported decision of the appointor.(370)

Powers as to giving effect to decisions may be given by the appointor to the supportive attorney in the appointment form. Those powers authorise the supportive attorney to take any reasonable action or to do anything that is reasonably necessary to give effect to a supported decision. However, if the supporting attorney is given this power in relation to financial matters, that power cannot be exercised in relation to "significant financial transactions".(371)

Under their appointments, supportive attorneys must:
  1. act honestly, diligently, and in good faith; and
  2. exercise reasonable skill and care; and
  3. not use the position for profit; and
  4. avoid acting where there is or may be a conflict of interest and, if acting where there is a conflict of interest, must ensure that the interests of the appointor are the primary consideration; and
  5. discuss anything about a supported decision with the appointor in a way the appointor can understand and that will assist the appointor to make the decision.(372)

It is important to appreciate that supportive attorneys are not entitled to receive any remuneration for acting as a supportive attorney.(373)

While supportive attorneys cannot be required to pay compensation to the appointor under the Act for causing loss to them by contravening provisions of the Act, there may civil actions for damages that could be brought against them. However, it is a criminal offence for a supportive attorney to obtain or to use an appointment of supporting attorney dishonestly in order to obtain financial advantage for themselves or another person or to cause loss to the appointor or another person. The penalty on conviction can be imprisonment for up to five years, a substantial fine or both.(374)

10.13.5 What applications in relation to supportive attorneys can be made to VCAT?

On application by a person referred to in 10. 13. 5. 1, or on its own initiative in any hearing before it, VCAT may make an order about any one or more of the following matters in relation to a supportive attorney appointment:

  1. the appointor's decision-making capacity for the matters to which the supportive attorney appointment applies, whether at the time the appointment was made or any time after that, and the effect of the appointor not having decision-making capacity on the supportive attorney appointment;
  2. the effect on the supportive attorney appointment of any failure to comply with a requirement of this Act;
  3. whether the supportive attorney has failed to comply with the terms of the appointment or is exercising undue influence over the appointor;
  4. any other matter VCAT considers necessary in relation to the supportive attorney appointment.(375)

Also on application by a person referred to in 10. 13. 5. 1, VCAT may give an advisory opinion on any matter relating to a supportive attorney appointment.(376)

10.13.5.1 Who may apply for an order?

The following may apply to VCAT for an order in relation to a supportive attorney appointment:

  1. any supportive attorney appointed under the supportive attorney appointment the subject of the application,
  2. the appointor of the supportive attorney appointment,
  3. the Public Advocate,
  4. the nearest relative of the appointor(377), or
  5. another person whom VCAT is satisfied has a special interest in the affairs of the appointor.(378)

10.13.5.2 Who is a party and who is entitled to notice of different aspects of the hearing and determination of the application?

The following are parties to the hearing of an application in relation to a supportive attorney appointment:
  1. the applicant, namely one of the persons listed in 10.13.5.1 above;(379) 1 (if not the applicant) the appointor of the supportive attorney appointment;
  2. (if not the applicant) any supportive attorney under the supportive attorney appointment(380); and
  3. any person joined as a party to the proceeding by VCAT.(381)

However, the applicant is required to serve a copy of the application on the appointor of the supportive attorney appointment and any supportive attorney under the supportive attorney appointment as well as any other person VCAT decides must be notified. In addition VCAT may decide that particular persons on the following list should also be served with a copy of the application by the applicant:

  1. any guardian, alternative guardian of the appointor, administrator, domestic partner(382), the primary carer or the nearest relative(383) of appointor;
  2. the Public Advocate; or
  3. any other person.(384)

We note that, because of the differing tests for decision-making capacity to make different decisions it is possible that a person who has the decision-making capacity to appoint a supportive attorney for one decision or matter, may also have a tribunal appointed guardian or administrator (financial manager) for another decision.

The Principal Registrar of VCAT is required to provide those entitled to be served with a copy of the application in a particular case with notice of the hearing and VCAT must provide then with a copy of the order in the matter.(385)

10.13.5.3 Orders VCAT may make when reviewing supportive attorney appointments

When dealing with an application or on its own initiative, and making an order in relation to a supportive attorney appointment, VCAT may do one or more of the following:
  1. revoke the supportive attorney appointment;
  2. revoke the appointment of one or more supportive attorneys under the supportive attorney appointment;
  3. vary the effect of the supportive attorney appointment;
  4. suspend the supportive attorney appointment for a specified period, either generally or as to a specified matter; or
  5. make any other order it considers necessary in relation to the supportive attorney appointment.(386)
VCAT may give an advisory opinion on any matter relating to a supportive attorney appointment that is referred to it by application or on its own initiative.(387)


[1] In re Coleman (1929) 24 Tas SR 77.

[2] Drew v Nunn (1879) 4 QBD 661.

[3] The Advance Personal Planning Act (NT), which came into force on 17 March 2014, replaced enduring powers of attorney with advance personal plans. These will be dealt with throughout this chapter and also in Chapters 9, 12 and 13. The description of them in this chapter commences at the end of this section.

[4] Powers of Attorney Act 2014 (Vic) s 22(1).

[5] Ibid. s 22(2).

[6] Ibid. s 3(1).

[7] Ibid. s 3(1) - financial matter - examples. Note that the Interpretation of Legislation Act 1984 (Vic) s 36A provides in effect that a list of examples like those set out in s 3(1) is a non-exhaustive list of financial matters covered by the general definition in s 3(1) of Powers of Attorney Act 2014 (Vic). The list may be extended by decisions of VCAT or the Supreme Court.

[9] Powers of Attorney Act 2006 (ACT) s 10.

[10] Powers of Attorney Act 2014 (Vic) s 3(1).

[11] Ibid. s 3(1) - personal matter - examples. Note that the Interpretation of Legislation Act 1984 (Vic) s 36A provides in effect that a list of examples like those set out in s 3(1) is a non-exhaustive list of personal matters covered by the general definition in s 3(1) of Powers of Attorney Act 2014 (Vic). The list may be extended by decisions of VCAT or the Supreme Court.

[13] Powers of Attorney Act 2014 (Vic) s 26.

[14] For example see, Guardianship and Administration Act 1990 (WA) s 45(3). For the most thorough approach to this matter in legislation, see the Advance Personal Planning Act (NT). See also Chapter 9. 4. 6.

[15] Powers of Attorney Act (NT) s. 6A(4) and note for Part III.

[16] Advance Personal Planning Act (NT) s. 8.

[17] For a case dealing with the capacity to revoke an enduring power of attorney and the law and evidence relevant to the assessment of that capacity see, FFJ [2014] NSWCATGD 22.

[18] For an example of the presumption in action see, ZQR(Guardianship) [2016] VCAT 364, [60]-[63].

[20] NSW (1988) Conv R 55-385.

[22] Ibid. [26].

[23] Re K, Re F [1988] Ch 310, 316. See also Re W [2000] Ch 343 and Re W in the Court of Appeal in which it acknowledged that the four points were "a sound indication" of what the maker must understand to make a valid enduring power of attorney, see In re W [2000] EWCA Civ J1211-1 [19]-[20], [2001] Ch 609.

[24] Adult Guardian (In Re Enduring Power of Attorney of Vera Hagger) v Vera Hagger, Declan James Barry and Albert Craig Ray (Unreported Supreme Court of Queensland,SC Qld No 1083 of 2001).

[25] Re HAA [2007] QGAAT 6 [34], a case in which the Tribunal found the maker lacked the required capacity when she made the challenged enduring power of attorney. See also, Re MV [2005] QGAAT 46. The Tribunal followed the same approach Re CAC [2008] QGAAT 45, but found the maker capable of making the enduring power of attorney and the presumption of capacity not rebutted. See also Re CAC [2008] QGAAT 45.

[26] Sydney, Federation Press, 2005, 44.

[27] NSW (1988) Conv R 55-385.

[28] Ghosn v Principle Focus Pty Ltd [2008] VSC 574 [76].

[29] Ibid. [77]

[30] Re K, Re F [1988] Ch 310.

[31] Ghosn v Principle Focus Pty Ltd [2008] VSC 574 [78].

[32] Szozda v Szozda [2010] NSWSC 804.

[33] Ibid. [28]-[30].

[34] Ibid. [34].

[35] Ibid. [120].

[36] Scott v Scott [2012] NSWSC 1541 [237]. Szozda v Szozda [2010] NSWSC 804.

[37] Scott v Scott [2012] NSWSC 1541 [221] and [227].

[38] Powers of Attorney Act 2003 (NSW) s 19(1). The term "prescribed witness" is defined in s 19(2). See Scott v Scott [2012] NSWSC 1541 [239].

[39] Szozda v Szozda [2010] NSWSC 804 [119].

[42] Ibid. [49].

[43] Ghosn v Principle Focus Pty Ltd [2008] 574 and Lake v Crawford [2012] NSWSC 232 [13].

[44] Scott v Scott [2012] NSWSC 1541 [233].

[45] Ibid. [234].

[46] Ibid. [238].

[47] Powers of Attorney Act 1998 (Qld), Schedule 1 s1.

[48] Ibid. s 41. A footnote to the section in the Act states: "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 [maker] understood those matters." For a case in which QCAT found that a person did not have capacity to make an enduring power of attorney see, SRC [2016] QCAT 444.

[49] Powers of Attorney Act 2000 (Tas) s 30(2)(a) and (3).

[50] Powers of Attorney Act 2014 (Vic) s 142.

[51] Powers of Attorney Act 2014 (Vic) s 143.

[52] Ibid. s 22(2).

[53] Ibid. s 143.

[54] Ibid. Part 2 ss 6-20.

[55] Ibid. s 142.

[56] Ibid. ss 4 and 5.

[57] Ibid. s 23(1).

[58] Ibid. s 4(2). Note that this provision and s 4 generally applies to enduring powers of attorney made under the now repealed provisions of the Instruments Act 1958 (Vic).

[59] Ibid. s 4(1)(a) and (3).

[60] Ibid. s 4(1)(a)-(d).

[61] Ibid. s 4(4)(a) and (b).

[62] Ibid. s 4(4)(c) and (d).

[63] Ibid. s 4(5).

[64] Ibid. s 44(4)(e).

[65] Ibid. s 39. That section sets out when an attorney's powers under an enduring power of attorney become exercisable. In other words when the enduring power of attorney commences. However, if the enduring power of attorney commences immediately, the maker will be able to direct the attorney as to what powers to exercise and how or when to exercise those powers.

[66] Ibid. s 23(2).

[67] [2012] NSWSC 1541 [227]. For a case in which there were contested enduring powers of attorney based on the maker's capacity to make those powers of attorney see, RKY (Guardianship) [2016] VCAT 729. For a case on the way the new legislation works from the issue of capacity to make an enduring power of attorney on, and including deciding to appoint an administrator for the person's estate see, NYO (Guardianship) [2017] VCAT 43.

[68] Powers of Attorney Act 2014 (Vic) s 36(1)(a).

[69] Powers of Attorney Act 2006 (ACT), s 18.

[70] Ibid. s 17.

[71] Interpretation Act (NT) s. 18.

[72] Advance Personal Planning Act (NT) ss. 4 and 8(1).

[73] Ibid. s. 6(1).

[74] Ibid. s. 6(2).

[75] Re Caldwell [1999] QSC 182. See also, Re MD [2005] QGAAT 29.

[76] Estate of Park [1954] P 89, 136.

[77] Scott v Scott [2012] NSWSC 1541 [199] and [200].

[78] For a Western Australian case dealing with the question of capacity to make an enduring power of attorney and consideration of the evidence relating to that capacity see, Re JCA;Ex parte RD [2012] WASAT 123.

[80] NSW (1988) Conv R 55-385.

[82] [2012] NSWSC1541.

[83] (1988) Conv R 55-385

[84] Powers of Attorney Act 1998 (Qld), s 41. Powers of Attorney Act 2000 (Tas) s 30(2)(a) and (3). For a very thorough consideration of the tests for capacity to make an enduring power of attorney in Tasmania and of the evidence on that question before deciding tribunal see, SFKD (Review enduring powers) [2014] TASGAB 12. Powers of Attorney Act 2006 (ACT), s 18.

[85] Ibid. s. 6(1).

[86] Szozda v Szozda [2010] NSWSC 804.[34]

[87] Collier, B and others, Mental Capacity: Powers of Attorney and Advanced Health Directives, Sydney, The Federation Press, 2005, 52.

[88] Peisah C. Brodaty H, Quadrio C, "Family conflict in dementia: prodigal sons & black sheep" International Journal of Geriatric Psychiatry (2006) 21(5):485-492.

[89] Peisah C., Finkel S., Shulman K., Melding P., Luxenberg J., Heinik J., Jacoby R., Reisberg B., Stoppe G., Barker A., Firmino H., Bennett H. for the International Psychogeriatric Association Task Force on Wills and Undue Influence (2009) The wills of older persons: risk factors for undue influence International Psychogeriatrics 21(1) 7-15

[90] Scott v Scott [2012] NSWSC 1541 [199] and [200].

[91] [2011] TASGAB 22 [24]-[29].

[93]

[94] Powers of Attorney Act 2014 (Vic) s 28(1).

[95] Ibid. s 28(2).

[96] Ibid. s 28(3).

[97] Ibid.. s 71.

[98] Ibid. s 72.

[99] Ibid. ss 116(1)(a)(ii) and 122(1)(b)(i).

[100] Ibid. ss 77 and 135(3). Note that the compensation provisions set out in Division 4 of Part 6 of the Powers of Attorney Act 2014 (Vic) concerning compensation apply to enduring powers of attorney made under the now repealed provisions of the Instruments Act 1958 (Vic).

[101] Ibid. ss 143 and 71-72.

[102] Ibid. s 29.

[103] Powers of Attorney Act 1998 (Qld) s 29(1), Powers of Attorney Act 2006 (ACT) s 14(1).

[104] Advance Personal Planning Act (NT) s. 15(1)(a) (2) and (3).

[105] Ibid. s.15(1).

[106] Powers of Attorney Act 2003 (NSW) s 19, Powers of Attorney Act 1998 (Qld) ss 29-31, 43 and 44, Powers of Attorney and Agency Act 1984 (SA) s 6, Powers of Attorney Act 2000 (Tas) ss 9 and 30, Powers of Attorney Act 2014 (Vic) ss 32-38, Guardianship and Administration Act 1990 (WA) s 104, Powers of Attorney Act 2006 (ACT) ss 19-22 and Advance Personal Planning Act (NT) ss 8-14.

[107] Powers of Attorney Act 2003 (NSW) s 20, Powers of Attorney Act 1998 (Qld) s 44(8), Powers of Attorney and Agency Act 1984 (SA) s 6(2), Powers of Attorney Act 2014 (Vic) s 37, Guardianship and Administration Act 1990 (WA) s 104(2)(b) and, Powers of Attorney Act 2006 (ACT) s 23.

[108] Advance Personal Planning Act (NT) ss 11(a) and 20(2).

[109] Powers of Attorney Act (NT) s 16(b).

[110] Ibid. ss. 55A-55C. Note that advance personal plans may be registered with the Public Trustee, but for a dealing in land made in the exercise of authority given to a decision maker appointed by a plan to be or to become effective, must be registered by the Registrar-General.

[111] Powers of Attorney Act 2006 (Tas) s 16.

[112] Powers of Attorney Act 2014 (Vic) s 39(1), (2) and (3).

[113] The Margaret Mitchell (1858) 166 ER 1174.

[114] Ibid. 1184. Also quoted in Dynayski v Grant [2004] NSWSC 1187, [19].

[115] Watson v Watson [2002] NSWSC 919, [49] and Dynayski v Grant [2004] NSWSC 1187, [19].

[116] (1983) 12 Aust Crim Rep 1, 14.

[117] Sutton v Sutton [2012] SASC 186 [20].

[118] Powell v Thompson [1991] 1 NZLR 597, 605.

[119] Watson v Watson [2002] NSWSC 919, [49].

[120] See for example, Greenland v Intellectually Disabled Citizens of Queensland [2000] QSC 84 [30]; Re KJS [2003] QGAAT 27 [61] and Klotz & Klotz v Neubauer & Klotz [2001] SASC 454 [33]-[37].

[121] Powers of Attorney Act 1998 (Qld) Schedule 1 ss 6, 7 and 10 and Powers of Attorney Act 2006 (ACT) Schedule 1 ss 1.6 and 1.7.

[122] Powers of Attorney Act 2014 (Vic) s 21.

[123] Powers of Attorney Act 1998 (Qld) s 66. For an example of awards of compensation for such losses see, Moylan v Richards [2010] QSC 327.

[125] Powers of Attorney Act 2000 (Tas) s 32A(1).

[126] Powers of Attorney Act 2014 (Vic) s 63(1)(a) and (b).

[127] Advance Personal Planning Act (NT) s. 21(1)(d).

[128] Powers of Attorney Act 2003 (NSW) s 9 and Powers of Attorney Act 1998 (Qld) s 77.

[129] Powers of Attorney Act 1998 (Qld) ss 67 and 77.

[130] Powers of Attorney Act 2000 (Tas) s 30(1)(b) and (c).

[131] Powers of Attorney and Agency Act 1984 (SA) Schedule 1.

[132] Powers of Attorney Act 1998 (Qld) s 73; Powers of attorney Act 2014 (Vic) ss 64 and 65 and Powers of Attorney Act 2006 (ACT) s 42. For examples of conflict transactions, see Re FAA [2008] QGAAT 3; Re MV [2005] QGAAT 46 and Public Trustee of Queensland v Ban [2011] QSC 380. For an example of a case in which an attorney was excused for his breach of his obligation not to enter a conflict transaction see, DBU [2015] QCAT 495. For a case in which the law on this matter was considered in detail see, Ede v Ede [2006] QSC 378.

[133] Cohen v Cohen [2016] NSWSC 336.

[134] Powers of Attorney Act 1998 (Qld) s 82 and 109A.

[136] Powers of Attorney Act 2014 (Vic) s 59.

[138] Powers of Attorney Act 2006 (ACT) s 53(2).

[139] For an example see, Re GMAV [2006] QGAAT 88

[140] For an example QCAT's predecessor tribunal granting leave to an attorney to resign, appointing an administrator but dismissing an application for a guardianship order see, Re VGM [2003] QGAAT 22. See also Re MLA [2006] QGAAT 91.

[141] Powers of Attorney Act 2003 (NSW) ss 35 and 36.

[143] Powers of Attorney Act 2000 (Tas) s 32A.

[144] Powers of Attorney Act (NT) s 15(1).

[145] Advance Personal Planning Act (NT) s. 19.

[146] Ibid. s. 34(a).

[147]Ibid. s. 34(b).

[148] Ibid. s. 62.

[149] Ibid. ss. 22(2) and (3) and 23.

[150] Ibid. s. 22(5).

[151] Ibid. s. 22(50(c).

[152] Ibid. s. 22(5A).

[153] Ibid. s 22(6).

[154] Ibid. s. 22(6A) and (7).

[155] Ibid. s. 22(8).

[156] Ibid. s. 23.

[157] Ibid. s. 23(3).

[158] Powers of Attorney Act 1998 (Qld) s 69, Powers of Attorney Act 2014 (Vic) s 27 and Powers of Attorney Act 1980 (NT) s 10. For examples of such implication see, Powers of Attorney and Agency Act 1984 (SA) s 13 and Advance Personal Planning Act (NT) s. 20(1).

[159] Powers of Attorney Act 1998 (Qld) s 85; Powers of Attorney Act 2014 (Vic) s 66; Powers of Attorney Act 2006 (ACT) s 47 and Guardianship and Administration Act 1990 (WA) ss 107(1)(b).

[160] Advance Personal Planning Act (NT) s. 30.

[161] Powers of Attorney Act 1998 (Qld s 86 and Powers of Attorney Act 2006 (ACT) s 48.

[162] Advance Personal Planning Act (NT) s. 31.

[164] Ibid. [34].

[165] Ibid. [40].

[166] Ibid. [42].

[167] Powers of Attorney Act 2006 (ACT) s 45(2) and (3).

[168] Powers of Attorney Act 1998 (Qld) s 81.

[169] Advance Personal Planning Act (NT) ss. 28and 29.

[170] Powers of Attorney 2014 (Vic) ss 21(2)(c)(iii) and 63(1)(e).

[171] Ibid. s 74.

[172] Powers of Attorney Act 2003 (NSW) s 11.

[173] Ibid. s 11(2) and Schedule 3 cl 1. The term "close friend" of a maker means another individual who has a close personal relationship with the maker and a personal interest in their welfare. The term "relative" of the maker means; a mother, father, wife, husband, daughter, son, step-daughter, step-son, sister, brother, half-sister, half-brother or grandchild of the maker. If the maker is a party to a domestic relationship within the meaning of the Property (Relationships) Act 1984 (NSW), any person who is a relative of the kind just set out, of either party to the relationship, is a relative for the purpose of the gift-giving provision.

[174] Powers of Attorney Act 1998 (Qld) s 88 and Powers of Attorney Act 2000 (Tas) s 31(3) and (4).

[175]In Queensland a "relation" of the maker is their spouse, a person related to the maker by blood, marriage or adoption or because of a de facto relationship, foster relationship or a relationship arising because of a legal arrangement; such as a court order for custody or a trust arrangement between trustee and beneficiary. A "relation" is also a person on whom the maker is completely or mainly dependent, a person who is completely or mainly dependent on the maker or a person who is a member of the same household as the maker. A "close friend" of the maker, means another person who has a close personal relationship with the maker and a personal interest in their welfare. See, Powers of Attorney Act 1998 (Qld) schedule 3.

[177] Ibid. s 39(1), (2)(a) and (5). In the Australian Capital Territory a "relative" is a person related to the maker by blood, affinity or adoption. A "close friend", of the maker, means someone who has a close personal relationship with the maker and a personal interest in their welfare.

[178] Ibid. s 39(2)(a).

[179] Ibid. s 39(2), (3) and (4).

[180] Powers of Attorney Act 2014(Vic) ss 67 and 69.

[181] Ibid. s 67. As at 19-11-2015, records had to be kept in relation to relevant gifts valued at $100 or more.

[182] Ibid. s 77.

[183] Ibid. s 135.

[184] Ibid. s 68.

[185] Advance Personal Planning Act (NT) s. 32(1).

[186] Ibid. s.32(2).

[187] Ibid. s.32(3).

[188] Ibid. s. 32(4).

[189] Ibid. s.33(1)(a)(i).

[190] Ibid. s.33(1)(a)(ii).

[191] Ibid. ss. 33 and 59(2)(c).

[192] Ibid. s. 33(2).

[193] Ibid. s. 33(2)(b) and (4).

[194] Ibid. ss. 33(3) and (4) and 59(2)(c).

[195] Ibid. s. 21(1)(d). As to the common law see, 10.7. 2 below.

[196] Bryant v La Banque du Peuple [1893] AC 170, 177.

[197] Tobin v Broadbent [1947] HCA 46; (1947) 75 CLR 378, 401. The sentence quoted by Dixon J is from Russell J in Reckitt v Barnett Pembroke and Slater Ltd (1928) 2 KB 244, 268 a judgment approved in the House of Lords in Reckitt v Barnett Pembroke and Slater Ltd (1929) AC 176, at 183 (Lord Hailsham LC) and 195 (Lord Warrington). See also, Wong v Wong [2008] NSWSC 330 [47].

[198] Powers of Attorney Act 2003 (NSW) ss 12 and 13.

[199] Ibid. schedule 3, items 2 and 3,

[201] Powers of Attorney Act 2000 (Tas) s 31(5).

[202] Powers of Attorney Act 2006 (ACT) s 40.

[203] Ibid. s 41.

[204] Powers of Attorney and Agency Act 1984 (SA) s 7, Instruments Act 1958 (Vic) s 125D(5), Guardianship and Administration Act 1990 (WA) s107(1)(a).

[205] However since 17March 2014, the Powers of Attorney Act (NT) has effect only in relation to enduring powers of attorney made before that date.

[206] Powers of Attorney and Agency Act 1984 (SA) s 11(1)(c), Powers of Attorney Act 1980 (NT) s 15(2)(c) and Guardianship and Administration Act 1990 (WA) s 109(1)(c).

[207] Powers of Attorney Act 2000 (Tas) ss 4, 9 and 30.

[208] Advance Personal Planning Act (NT) s. 55A.

[209] Powers of Attorney Act 2003 (NSW) s 25, Powers of Attorney Act 1998 (Qld) s 34, Powers of Attorney Act 2000 (Tas) s 42, Powers of Attorney Act 2014 (Vic) s 138, Guardianship and Administration Act 1990 (WA) s104A, Powers of Attorney Act 2000 (ACT) s 89 and Advance Personal Planning Act (NT) s 88 and Advance Personal Planning Regulation (NT) reg. 8 and the Schedule.

[210] Powers of Attorney Act 2000 (Tas) ss 4, 42, 43 and 47.

[211] PG and KRL [2010] WASAT 30.

[212] Protected Estates Act 1983 (NSW) s 75(5).

[213] Powers of Attorney Act 2003 (NSW) s 37, Guardianship Act 1987 (NSW) s 25F(d). For a case in which the Tribunal turned an application for a review of the making of an enduring power of attorney into an application for a financial management (administration) order see, ALC [2011] NSWGT 6.

[215] Ibid. s 23.

[216] Powers of Attorney and Agency Act 1984 (SA) s 10. It is assumed that by necessary implication that an administration order made by the Guardianship Board would have the same effect or at least would take precedence over the power of attorney while the administration order was in effect.

[218] Powers of Attorney Act 2000 (Tas) s 33.

[219] Powers of Attorney Act (Vic) s 83(1). For an example of a case in which VCAT made an administration order, but did not authorise the attorneys under an enduring power of attorney (financial) to exercise any the powers under the enduring power of attorney see, IRB (Guardianship) [2016] VCAT 596.

[220] Guardianship and Administration Act 1990 (WA) s 108. For a case in which the Tribunal considered that the enduring power of attorney was not operating to protect the interests of the maker and consequently appointed an administrator and then revoked the enduring power of attorney see, JJB & ERB [2006] WASAT 110.

[222] Guardianship of Adults Act 2016 (NT) ss 10 to 15.

[223] Ibid. s 101(2)(b).

[224] The repeal of the Aged and infirm Persons Property Act (NT) occurred immediately after the commencement of the Guardianship of Adults Act (NT) on 28 July 2016 as a result of the coming into force of the Advance Personal Planning Amendment Act (NT) (2016). S. 28 of that short-lived Act repealed the Aged and infirm Persons Property Act (NT). The Advance Personal Planning Amendment Act (NT) (2016), which contained the sections which provided for the transformation of the then current protection orders made in the Supreme Courts into guardianship orders made by NTCAT and other matters referred to in the next paragraph and the footnote at the end of the paragraph, itself expired the day after it commenced (i.e. 29 July 2016). This explains why the relevant sections are not in the version of the Advance Personal Planning Act (NT) currently in force.

[225] Advance Personal Planning Act (NT), s 104B. Note also that any applications to the Supreme Court for protection orders under the repealed Aged and infirm Persons Property Act (NT), pending on 28 July 2016, were to be dealt with by the Court as if that Act had not been repealed, but any protection order made by the Court became (or becomes) a guardianship order under the Advance Personal Planning Act 2016 (NT), by operation of s 104C of that Act. Similarly any other application under the repealed Act, pending on the same day were to be dealt with the same way and became (or becomes) an order made under the Advance Personal Planning Act 2016 (NT), by operation of s 104D of that Act.

[226] Guardianship of Adults Act 2016 (NT), s 101 and Northern Territory Civil and Administrative Tribunal Act (NT) s 141.

[227] Ibid. ss. 56-64.

[228] For an example of a tribunal being satisfied that the management of the maker's finances by her joint enduring attorneys was appropriate and that it was appropriate for them to continue to act despite the concerns of other relatives, see Re HIO [2006] QGAAT 75.

[230] Ibid. [103]-[105].

[231] Ibid. [106] and Powers of Attorney Act 1998 (Qld) s 87.

[232] Ibid. [107] and [137]. See VK [2012] QCAT 117 for a case in which QCAT appointed VK's son and her enduring attorney CK as administrator of her estate for one year in order to get him to provide a financial management plan and accounts, and to take action to facilitate the sale of his mother's real property in order for her outstanding nursing home fees and her current and continuing expences.

[233] Szozda v Szozda [2010] NSWSC 804 [16] and [19].

[234] See Powers of Attorney Act 2003 (NSW) s. 34. For an example see, TCM [2011] NSWGT 9.

[235] Powers of Attorney Act 2003 (NSW) s 35(1).

[237] KTC [2011] NSWGT 23. For detailed consideration of "a genuine concern for the welfare of [the person the subject of the application]" see, AJC [2007] NSWGT 15. See also QAG [2007] NSWGT 12.

[238] Powers of Attorney Act 2003 (NSW) s 35(2) and (3).

[239] For a case in which the tribunal (now NCAT), after receiving evidence of the appropriate management of the maker's finances by the enduring attorney and the maker's desire that she continued as her attorney, was satisfied that the current situation reflected the maker's views and her best interests and dismissed the application to review the enduring power of attorney see, QQM [2011] NSWGT 2.

[240] For an example see CNI [2008] NSWGT 17; a case in which a daughter was removed as a joint and several enduring attorney with her brother of their mother on the grounds that while the son had a good working relationship with those responsible for their mother's (CNI) day to day care, the daughter did not. Further that it was in CNI's interests that the daughter be removed leaving the son as sole enduring attorney. For a case in which the inability of two, joint enduring attorneys to work together led to them being replaced as financial managers by the NSW Trustee see, HND [2011] NSWGT 13.

[241] For an example see, FDT [2010] NSWGT 4. In that case the maker had appointed a Mrs TAN and a Mr QKT as joint enduring attorneys. Mr QKT died so the enduring power of attorney lapsed by operation of s. 46(1) of the Powers of Attorney Act 2003 (NSW). However, the then Guardianship Tribunal reinstated the power of attorney and appointed Mrs TAN as the substitute attorney to replace Mr QKT. The Tribunal found that there was a continuing need for the maker's, Mrs FDT's, finances to be managed in her best interests by a caring family member which Mrs TAN was. While this is an elegant solution, whether it is consistent with the spirit of the Act to reinstate an enduring power of attorney for which the maker appointed joint attorneys by appointing the remaining attorney as the substitute attorney and so the sole attorney is an open question.

[242] For a case in which an attorney under an enduring power of attorney was ordered to lodge accounts with the tribunal (now NCAT) revealed the need to appoint a financial manager what remained of the maker's financial resources see, TKX [2010] NSWGT 10. For an example of the tribunal (now NCAT) reviving a lapsed enduring power of attorney by appointing two new attorneys supported by all those who attended the hearing, a less intrusive approach than making a financial management order see, YNB [2012] NSWGT 4.

[243] For a case in which an applicant for a review of the operation of an enduring power of attorney further appealed their concerns to the Administrative Appeals Tribunal, see IS v Public Guardian & Ors [2009] NSWADTAP 24.

[244] For an example of a review of the operation and effect of an enduring power of attorney leading to its revocation on the grounds first that substantial expenditure by the attorney did not benefit the maker (and involved the giving of gifts contrary to the terms of the power and the legislation) and second involved a conflict between the interests of the maker and those of the attorney, see, FNB [2010] NSWGT 9. In that case the Tribunal also appointed the NSW Trustee as the maker's financial manager (administrator) and the Public Guardian as her guardian.

[245] Powers of Attorney Act 2003 (NSW) s 36(4).

[246] Szozda v Szozda [2010] NSWSC 804 [41].

[247] Powers of Attorney Act 2003 (NSW) s 36(5).

[248] Ibid. s 36(6).

[249] Powers of Attorney Act 2003 (NSW) s 37, Guardianship Act 1987 (NSW) s 25F(d). For some examples see, BSX [2009] NSWGT 5 and ALC [2011] NSWGT 6.

[250] Ibid. ss 36 and 38.

[252] Powers of Attorney Act 1998 (Qld) ss 109A and 110. Also, s 109 notes that the inherent parens patriae jurisdiction of the Supreme Court is not affected by this legislation.

[253] For the purposes of these applications, the maker's family consists of the following: the maker's spouse, each of their children who is 18 years or more (including a stepchild, an adopted child, and a person for whom the maker was foster-parent or guardian when the person was a child), each of the maker's parents (including a step-parent, adoptive parent, foster-parent and guardian). If there is none of the above, then each of the maker's siblings who is 18 years or more (including a step-sibling, adopted sibling, and foster-sibling). See s 110(5).

[254] Powers of Attorney Act 1998 (Qld) s 110(3)(f) and (4). QCAT or the Court may join parties to these applications and allow interested persons to take part. See s 110(4).

[255] Ibid. s 111. For examples see, Re CEJ [2005] QGAAT 30, Re MV [2005] QGAAT 46 and Re CAC [2008] QGAAT 45.

[256] For a case in which an interim order was sought but in which QCAT considered the evidence of a geriatric registrar and a neuropsychiatric assessment for capacity, was not able to conclude that neither an 86 year old woman nor her husband whom she had recently appointed as her attorney under an enduring power of attorney appointed could not understand the nature and consequences of decisions about her financial affairs, see MIJ [2016] QCAT 276. In that case, QCAT was unable to conclude from that evidence that MIJ could not make decisions freely and voluntarily and was not satisfied that the presumption of capacity had been rebutted by the evidence given to it. QCAT noted that the evidence from the applicant suggested that MIJ's husband had engaged in imprudent financial decisions in the past, but QCAT pointed out that it was MIJ's capacity that was in issue in this application, see [11].

[257] Ibid. s 113.

[258] Ibid. s 113(3).

[259] See for example, Re LCG [2003] QGAAT 15, Re DEM [2005] QGAAT 59 and Re RWM [2006] QGAAT 52.

[260] Powers of Attorney Act 1998 (Qld) s118(1). For examples see, Re CEJ [2005] QGAAT 30 and Re CAB [2007] QGAAT 23.

[261] Ibid. s 118(2).

[262] For an example, see BME [2014] QCAAT 67.

[263] Powers of Attorney Act 1998 (Qld) s 122.

[264] For a case in which it was decided that a particular family member had a "proper interest" in the matter see, Sutton v Sutton [2012] SASC 186.

[265] As noted in 10. 6. 1. 5. above, an enduring attorney may not renounce their role under an enduring power of attorney during the time the maker is incapable without the permission of the Supreme Court.

[267] Powers of Attorney Act 2000 (Tas) s 33(1).

[268] Ibid. ss 39 and 40.

[269] For a clear case of this provision in action see, THK (Review of Enduring Power of Attorney Guardianship and Administration) [2013] TASGAB 13. In that case the evidence that THK did not have sufficient mental capacity to execute an enduring power of attorney was clear and uncontested. The Board the proceeded to make guardianship and administration orders. See also QNH (Review Enduring Powers) [2013] TASGAB 8.

[270] Powers of Attorney Act 2000 (Tas) s 33(2). For a description of the Board conducting a review of the appointment of an attorney under an enduring power of attorney see, KB and RB v Guardianship and Administration Board [2007] TASSC 45. For a case in which the enduring power of attorney was revoked on the grounds first that the maker did not understand the nature and effect of the document and that the attorney did not exercise the care, diligence and skill that a prudent person of business would in managing the affairs of another person see, NPG (Review Enduring Power) [2011] TASGAB 22.

[271] Ibid. s 33(4).

[272] For a case on a request for advice and direction but in which direction not given see, KOI (Enduring Powers) [2011] TASGAB 7. For a case on change of enduring attorney and a direction to the new attorney to seek legal advice see, FHK (Review Enduring Powers) [2011] TASGAB 18.

[273] Ibid. s 35.

[274] Powers of Attorney Act 2014 (Vic) s 142.

[275] Powers of Attorney Act 2014 (Vic) s 116(1).

[276] The nearest relative is the relative first person, 18 years or older, the elder or eldest of two or more relatives, regardless of sex, listed in the following list: (a) spouse or domestic partner; (b) child; (c) parent or step-parent; (d) sibling or step-sibling; (e) grandparent; (f) grandchild; (g) uncle or aunt; (h) nephew or niece. See Powers of Attorney Act 2014 (Vic) ss 122(1) and 3(1). For the further definition of "domestic partner see, s 3(2) and in relation to a person's siblings see, s 3(3).

[277] Powers of Attorney Act 2014 (Vic) s 122(1).

[278] Ibid. s 122(2).

[280] Powers of Attorney Act 2014 (Vic) s 124.

[281] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 59(1)(a)(iii).

[282] Powers of Attorney Act 2014 (Vic) s 3(1) and (2).

[283] Ibid. s 3(1). See also footnote 192.

[284] Ibid. s 123(4).

[285] Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 99(1)(b) and s 116(2)(a) or (b).

[286] Powers of Attorney Act 2014 (Vic). See ss 64 and 65, 65(4) to (6) in particular.

[287] Ibid. s 120.

[288] Ibid. s 120(2).

[289] s 117(1).

[290] Ibid. s 117(2).

[291] Ibid. s 118.

[292] Ibid. s 119.

[293] Ibid. s 121. We suggest that the wording of s 120(1)(f) and (g) is wide enough to allow VCAT, on its own initiative, to give, in orders, what are in fact advisory opinions should it consider it necessary to do so in relation to an enduring power of attorney.

[295] Ibid. s 3A.

[298] CS and JS [2014] WASAT 173, [29].

[299] Ibid. s 109(3).

[300] Ibid. ss 40 and 64. For a case in which WASAT considered it unsafe for an enduring power of attorney to be used and made an administration order, see CJS [2016] WASAT 42.

[301] For an example see, EW [2010] 91 in which the audit was ordered after the death of the maker of the enduring power of attorney. And for a case in which it was confirmed that WASAT's jurisdiction in relation to ordering audits does not end at the death of the maker of the enduring power of attorney, but in which an application for an audit was not granted see, HD [2016] WASAT 37.

[302] Ibid. s 109(1).

[303] Ibid. s 109(2).

[304] For an example see, VM and Y [2006] WASAT 245, 44 SR (WA) 104; LS [2016] WASAT 89 and FH [2016] WASAT 95.

[305] CS and JS [2014] WASAT 173.

[306] JS and CJ [2016] WASAT 14.

[308] RS and Anor and DV [2011] WASAT 144 [15]. For the case making it clear that this description of "full legal capacity" applied to the making of enduring powers of attorney see, MB v EM [2013] WASAT 106 [33]. For a less stringent view of the degree of understanding required of a maker of an enduring power of attorney when making it see 10. 3. 1 above generally and Lindsay J in Scott v Scott [2012] NSWSC 1541 at [221] to [227] in particular.

[309] Ibid. [51]. See Guardianship and Administration Act 1990 (WA) s 109(1)(c).

[310] Powers of Attorney Act 2006 (ACT) s 62(2) and (4).

[311] Ibid. ss 80, 81, 83 and 84.

[312] A relative of the maker is a person related by blood, affinity or adoption to the maker

or a domestic partner of the maker. See Powers of Attorney Act 2006 (ACT) Dictionary. The meaning of "domestic partner" is set out in the Legislation Act 2001 (ACT) s 169.

[315] If the Tribunal asks the Public Trustee to assist it by examining and reporting on books, accounts or other records of transactions carried out by the enduring attorney, the Public Trustee must assist. See Powers of Attorney Act 2006 (ACT) s 83(2). See also s 83(3).

[316] For a case on an application to suspend rather than revoke an enduring power of attorney see, Joan Whyte (Guardianship and Management of Property) [2010] ACAT 23.

[318] Ibid s 62(4).

[319] Ibid. s 66.

[320] Ibid. s 84(2).

[321] Ibid. s 84(3) and (4).

[322] Advance Personal Planning Act (NT) ss 56-65.

[323] Guardianship of Adults Act (NT) ss 77 and 11-20, and 18 in particular.

[324] Advance Personal Planning Act (NT) ss 57 and 22 and the Guardianship of Adults Act (NT) ss 78 and 4.

[325] Advance Personal Planning Act (NT) s 58.

[326] Ibid. ss 59, 21(1) and 22.

[327] Ibid. s. 21(2).

[328] Ibid.. s. 31(2)(b)(ii).

[329] Ibid. s. 32(2).

[330] Ibid. s. 33(3).

[331] Ibid. s 35(1)(b).

[332] Ibid. s 36(1)(b) and (4). In this context a professional decision maker is one of the following: the Public Trustee; the Public Guardian; a licensed trustee company or another person who carries on the business of, or including, providing services as a decision maker.

[333] Ibid. s 37.

[334] Ibid. ss 3 and 59(1) and (2). In this context the term "agent" means a decision maker, a guardian (appointed by NTCAT) for the person, an enduring attorney for the maker or another person who has lawful authority to manage the maker's affairs.

[335] Ibid. s 59(3).

[336] Ibid. s. 59(4).

[337] Ibid. s 60(2) b).

[338] Ibid. s. 61(2)(h). Also the Act provides examples of what major changes in circumstances might include. These are: a person appointed as decision maker losing decision-making capacity; the maker getting divorced or becoming estranged from other family members; (c) a decision maker being convicted of an offence that makes it unsuitable for them to continue to be a decision maker.

[339] Ibid. s. 61(1) and (2). In this context the term "agent" means a decision maker, a guardian (appointed by NTCAT) for the person, an enduring attorney for the maker or another person who has lawful authority to manage the maker's affairs.

[340] Ibid. s. 61(3).

[341] Ibid. s. 61(4).

[342] Ibid. s. 61(5).

[343] Ibid. s. 62.

[344] Guardianship of Adults Act (NT) s 78.

[345] Ibid. s 4(2).

[346] Ibid. s 4(3).

[347] Advance Personal Planning Act (NT) s 22(5).

[348] Guardianship of Adults Act (NT) s 4(4).

[349] Guardianship of Adults Act (NT) s 3. Note that an interested person in this context means any of the following: a relative of the adult (as defined in s.7of the Act); a guardian for them; the Public Guardian; the Public Trustee; an agent for the person (as agent for a person in this context is a guardian of the person; a decision maker appointed by the person in an advance personal plan, when the person had planning capacity or if the person made an enduring power of attorney before 17 March 2014, and enduring attorney appointed under that power of attorney; or any other person who has lawful authority to make decisions for the person about personal matters or financial matters; a person who is primarily responsible for providing support or care to the person or any other person who has a genuine and sufficient interest in protecting the person's best interests.

[350] Would such a "support network" include persons who support the person to make his or her own decisions?

[351] Powers of Attorney Act (NT) ss, 5, 11 and 15. An agent for the maker of an enduring power of attorney means any of the following; a decision maker appointed by the person under the Advance Personal Planning Act (NT); a guardian appointed for the person under the Adult Guardianship Act (NT); a manager appointed for the person under the Aged and Infirm Persons' Property Act (NT) and any other person who has lawful authority to manage the person's affairs.

For a Northern Territory case involving a person with limited intellectual capacity who gave a power of attorney to a friend who then, often acting as attorney under the power of attorney , took advantage of the maker of the power of attorney see, Mattila v Gardner (No 2) [2013] NTSC 32. See also 3. 3. 5 and 3. 5. 1 in Chapter 3 relating to quantum meruit and undue influence.

[354] Ibid. s 135.

[355] Ibid. s 84

[356] Parliament of Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 57th Parliament, First Session, Thurs, 26 June 2014, 2394.

[357] Ibid. 2394.

[361] A critical assessment of supported decision-making for persons aging with intellectual disabilities. Kohn NA1, Blumenthal JA2. Disabil Health J. 2014 7(1 Suppl):S40-3.

[362] Bigby, C., Whiteside, M., & Douglas, M. (2015). Supporting People with Cognitive Disabilities in Decision Making - Processes and Dilemmas. Melbourne: Living with Disability Research Centre, La Trobe University

[363] Ibid. s 91. Those disqualified from being appointed as supportive attorneys are: 1, care workers namely persons who perform services for the care of the appointor and receives remuneration for those services from any source, but does not include a person who receives a carer payment or other benefit from the Commonwealth or a State or a Territory of the Commonwealth for providing home care for the individual or; 2, a health provider, that is a person who provides health care in the practice of a profession or in the ordinary course of business or; 3, an accommodation provider, that is a person who is, in a professional or administrative capacity, directly or indirectly responsible for or involved in the provision of accommodation to the appointor. See s 3.

[364] Ibid. s 92. While it is normal in legislation for the singular to include the plural, the Interpretation of Legislation Act 1984 (Vic) s 37 provides that that is the case; "unless the contrary intention appears". In the case of s 92 of the Powers of Attorney Act 2014 (Vic), it appears to us that the contrary intention does appear and that the intention of the section is that if more than one supportive attorney is appointed, they are to act separately in relation to the matters specified in the appointment they are appointed to act in relation to. An obvious example is that one supportive attorney could be appointed to act in relation to financial matters and another appointed to act in relation to personal matters. If we are wrong, then supportive attorneys could be appointed to act separately from one another in relation to the matters both or even more than both are appointed to act in relation to separately.

[365] Ibid. s 93.

[366] Ibid. ss 94-98.

[367] Ibid. s 99.

[368] Ibid. ss 100, 103-108.

[369] Ibid. s 101

[370] Ibid. s 87(1) and (2). Note that information may sometimes be obtained by a supportive attorney under the provisions of the Disability Act 2006 Vic), the Health Records Act 2001 (Vic) and the Privacy and Data Protection Act 2014 (Vic).

[371] Ibid. s 87(3).

[372] Ibid. s 88.

[373] Ibid. s 89. In s 89(2) the term "significant financial transaction" is defined to include: (a) making an investment for the principal or continuing an investment of the principal (subject to s 89(3)), including taking up rights to issues of new shares or options for new shares to which the appointor becomes entitled by appointor's existing shareholding; or (b) undertaking any real estate transaction for the appointor, excluding entering into a residential tenancy for a premises in which the appointor lives or intends to live; or (c) dealing with land on behalf of the appointor including taking out a loan on behalf of the appointor or giving a guarantee on behalf of the appointor; or (d) undertaking a transaction for the appointor involving the use of appointor's property as security for an obligation; or (e) buying and selling substantial personal property on behalf of the appointor.

[374] Ibid. s 90(1).

[375] Ibid. s 90(2).

[376] Ibid. s 136.

[377] Ibid. s 116(2).

[378] Ibid. s 121.

[379] The nearest relative is the relative first person, 18 years or older, the elder or eldest of two or more relatives, regardless of sex, listed in the following list: (a) spouse or domestic partner; (b) child; (c) parent or step-parent; (d) sibling or step-sibling; (e) grandparent; (f) grandchild; (g) uncle or aunt; (h) nephew or niece. See Powers of Attorney Act 2014 (Vic) ss 122(1) and 3(1). For the further definition of "domestic partner see, s 3(2) and in relation to a person's siblings see, s 3(3).

[380] Powers of Attorney Act 2014 (Vic) s 122(1).

[382] Powers of Attorney Act 2014 (Vic) s 124.

[383] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 59(1)(a)(iii).

[384] Powers of Attorney Act 2014 (Vic) s 3(1) and (2).

[385] Ibid. s 3(1). See also footnote 192.

[386] Ibid. s 123(4).

[388] Powers of Attorney Act 2014 (Vic). s 120(3).

[389] Ibid. s 121. . We suggest that the wording of s 120(2)(d) is wide enough to allow VCAT, on its own initiative, to give, in orders, what are in fact advisory opinions should it consider it necessary to do so in relation to a supportive attorney appointment.

Notes

1 : In re Coleman (1929) 24 Tas SR 77

2 : Drew v Nunn (1879) 4 QBD 661

3 : The Advance Personal Planning Act (NT), which came into force on 17 March 2014, replaced enduring powers of attorney with advance personal plans. These will be dealt with throughout this chapter and also in Chapters 9, 12 and 13. The description of them in this chapter commences at the end of this section.

4 : Powers of Attorney Act 2014 (Vic) s 22(1).

5 : Ibid. s 22(2).

6 : Ibid. s 3(1).

7 : Ibid. s 3(1) - financial matter- examples. Note that the Interpretation of Legislation Act 1984 (Vic) s 36A Provides in effect that a list of examples like those set out in s 3(1) is a non-exhaustive list of financial matters covered by the general definition in s 3(1) of the Powers of Attorney Act 2014 (Vic). The list may be extended by decisions of VCAT or the Supreme Court.

8 : Powers of Attorney Act 1998 (Qld) Sch 2 Pt 1.

9 : Powers of Attorney Act 2006 (ACT) s 10.

10 : Powers of Attorney Act 2014 (Vic) s 3(1)

11 : Ibid, s 3(1) - personal matter- examples. Note that the Interpretation of Legislation Act 1984 (Vic) s 36A provides in effect that a list of examples like those set out in s 3(1) is a non-haustive list of personal matters covered by the general definition of s 3(1) of Powers of Attorney Act 2014 (Vic). The list may be extended by decisions of VCAT or the Supreme Court.

12 : Guardianship and Administration Act 1986 (Vic) s24(2).

13 : Powers of Attorney Act 2014 (Vic) s 26

14 : For example, see Guardianship and Administration Act 1990 (WA) s 45(3). For the most thorough approach to this matter in legislation, see the Advance Personal Planning Act (NT). See also Chapter 9.4.6

15 : Powers of Attorney Act (NT) s. 6A(4) and note for Part III.

16 : Advance Personal Planning Act (NT) s 8.

17 : For a case dealing with the capacity to revoke an enduring power of attorney and the law and evidence relevant to the assessment of that capacity see FFJ [2014] NSWCATGD 22.

18 : For an example of the presumption in action see ZQR (Guardianship) [2016] VCAT 364, [60]-[63].

19 : (1954) [1954] HCA 17; 91 CLR 423, 438, [1954] HCA 17[7].

20 : NSW (1988) Conv R 55-385.

21 : Re CEJ [2005] QGAAT 30[24].

22 : Ibid. [26]

23 : Re K, Re F [1988] Ch 310, 316. See also Re W [2000] Ch 343 and Re W in the Court of Appeal in which it acknowledged that the four points were a "sound indication" of what the maker must understand to have a valid enduring power of attorney, see In re W [2000] EWCA Civ J1211-1 [19]-[20], [2001] Ch 609

24 : Adult Guardian (In Re Enduring Power of Attorney of Vera Hagger) v Vera Hagger, Declan James Barry and Albert Craig Ray (Unreported Supreme Court of Queensland, SC Qld No. 1083 of 2001)

25 : Re HAA [2007] QGAAT 6 [34], a case in which the tribunal found the maker lacked the required capacity when she made the chalenged enduring power of attorney. See also Re MV [2005] QGAAT 46. The Tribunal followed the same approach Re CAC [2008] QGAAT 45.

26 : Sydney Federation Press, 2005, 44

27 : NSW (1988) Conv R 55-385

28 : Ghosn v Principle Focus Pty Ltd [2008] VSC 574 [76].

29 : Ibid. [77].

30 : Re K, Re F [1988] Ch 310

31 : Ghosn v Principle Focus Pty Ltd [2008] VSC 574 [78]

32 : Szozda v Szozda [2010] NSWSC 804.

33 : Ibid, [28]-[30].

34 : Ibid, 34.

35 : Ibid [120]

36 : Scott v Scott [2012] NSWSC 1541 [237]. Szozda v Szozda [2010] NSWC 804.

37 : Scott v Scott [2012] NSWSC 1541 [221] and [227].

38 : Powers of Attorney Act 2003 (NSW) s 19(1). The term "prescribed witness" is defined in s 19(2). See Scott v Scott [2012] NSWSC 1541 [239].

39 : Szozda v Szozda [2010] NSWSC 804 [119].

40 : [2008] VSC 574

41 : [2004] VSCA 235.

42 : Ibid, [49]

43 : Ghosn v Principle Focus Pty Ltd [2008] 574 and Lake v Crawford [2012] NSWSC 232 [13].

44 : Scott v Scott [2012] NSWSC 1541 [233]

45 : Ibid, [234]

46 : Ibid, [238]

47 : Powers of Attorney Act 1998 (Qld), Schedule 1 s 1.

48 : Ibid, s 41. A footnote to the section in the Act states: "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 [maker] understood those matters". For a case in which QCAT found that a person did not have capacity to make an ensuring power of attorney, see SRC [2016] QCAT 444

49 : Powers of Attorney Act 2000 (Tas) s 30(2)(a) and (3)

50 : Powers of Attorney Act 2014 (Vic) s 142

51 : Powers of Attorney Act 2014 (Vic) s 143.

52 : Ibid, s 22(2)

53 : Ibid, s 143

54 : Ibid, Part 2 ss 6-20

55 : Ibid. s 142

56 : Ibid, ss 4 and 5

57 : Ibid. s 4(2). Note that this provision and s 4 generally applis to enduring powers of attorney made under the now repealed provisions of the Instruments Act 1958 (Vic)

58 : Ibid. s 4(1)(a) and (3)

59 : Ibid. s 4(1)(a)-(d)

60 : Ibid. s 4(4)(a) and (b)

61 : Ibid. s 4(4)(c) and (d)

62 : Ibid s 4(5)

63 : Ibid s 44(4)(e)

64 : Ibid. s 39. That section sets out when an attorney's powers under an enduring power of attorney become exercisable. In other words when the enduring power of attorney commences. However, if the enduring power of attorney commences immediately, the maker will be able to direct the attorney as to what powers to exercise and how or when to exercise those powers.

65 : Ibid. s 23(2).

66 : [2012] NSWSC 1541 [227]. For a case in which there were contested enduring powers of attorney based on the maker' scapacity to make those powers of attorney see RKY (Guardianship) [2016] VCAT 729. For a case on the way the new legislation works from the issue of capacity to make an enduring power of attorney on and including deciding to appoint an administrator for the person's estate see NYO (Guardianship ) [2017] VCAT 43.

67 : Powers of Attorney Act 2014 (Vic) s 36(1)(a).

68 : Powers of Attorney Act 2006 (ACT) s 18.

69 : Ibid, s 17

70 : Interpretation Act (NT) s 18.

71 : Advance Personal Planning Act (NT) ss 4 and 8(1)

72 : Ibid, s. 6(1)

73 : Ibid, s. 6(2)

74 : Re Caldwell [1999] QSC 182. See also, Re MD [2005] QGAAT 29.

75 : Estate of Park [1954] P 89, 136

76 : Scott v Scott [2012] NSWSC 1541 [199] and [200]

77 : For a Western Australian case dealing with the question of capacity to make an enduring power of attorney and consideration of the evidence relating to that capacity see Re JCA; Ex parte RD [2012] WASAT 123

78 : [1954] HCA 17[7], (1954) 91 CLR 423, 438

79 : NSW (1988) Conv R 55-385

80 : [2010] NSWSC 804

81 : [2012] NSWSC 1541

82 : (1988) Conv R 55-385

83 : Power of Attorney Act 1998 (Qld), s 41. Powers of Attorney Act 2000 (Tas) s 30(2)(a) and (3). For a very thorough consideration of the tests for capacity to make an enduring power of attorney in Tasmania and of the evidence on that quetsion before deciding tribunal see SFKD (Review enduring powers) [2014] TASGAB 12. Powers of Attorney Act 2006 (ACT) s 18

84 : Ibid, s. 6(1)

85 : Szozda v Szozda [2010] NSWSC 804, [34]

86 : Collier, B., and others, Mental Capacity: Powers of Attorney and Advanced Health Directives, Sydney, The Federation Press, 2005, 52

87 : Peisah C., Broadaty H., Quadrio C., "Family conflict in dementia: prodigal sons & black sheep" International Journal of Geriatric Psychiatry (2006) 21(5): 485-492.

88 : Peisah C., Finkel S., Shulman K., Melding P., Luxenberg J., Heinik J., Jacoby R., Reisberg B., Stoppe G., Barker A., Firmino H., Bennett H., for the Inernational Psychogeriatric Association Task Force on Wills and Undue Influence (2009). The wills of older persons: risk factors for undue influence International Psychogeriatrics 21(1) 7-15

89 : Scott v Scott [2012] NSWSC 1541 [199] and [200]

90 : [2011] TASGAB 22 [24]-[29]

91 : [2014] NSWCATGD 22

92 :

93 : Powers of Attorney Act 2014 (Vic) s 28(1)

94 : Ibid, s 28(2)

95 : Ibid, s 28(3)

96 : Ibid, s 71.

97 : Ibid, s 72

98 : Ibid, ss 116(1)(a)(ii) and 122(1)(b)(i)

99 : Ibid, ss 77 and 135(3). Note that the compensation provisions set out in Division 4 of Part 6 of the Powers of Attorney Act 2014 (Vic) concerning compensation apply to enduring powers of attorney made under the now repealed provisions of the Instruments Act 1958 (Vic)

100 : Ibid, ss 143 and 71-2

101 : Ibid, s 29

102 : Powers of Attorney Act 1998 (Qld) s 29(1), Powers of Attorney Act 2006 (ACT) s 14(1)

103 : Advance Personal Planning Act (NT) s. 15(1)(a) (2) and (3)

104 : Ibid. s.15(1)

105 : Powers of Attorney Act 2003 (NSW) s 19, Powers of Attorney Act 1998 (Qld) ss 29-31, 43 and 44, Powers of Attorney and Agency Act 1984 (SA) s 6, Powers of Attorney Act 2000 (Tas) ss 9 and 30, Powers of Attorney Act 2014 (Vic) ss 32-38, Guardianship and Administration Act 1990 (WA) s 104, Powers of Attorney Act 2006 (ACT) ss 19-22 and Advance Personal Planning Act (NT) ss 8-14.

106 : Powers of Attorney Act 2003 (NSW) s 20, Powers of Attorney Act 1998 (Qld) s 44(8), Powers of Attorney and Agency Act 1984 (SA) s 6(2), Powers of Attorney Act 2014 (Vic) s 37, Guardianship and Administration Act 1990 (WA) s 104(2)(b) and, Powers of Attorney Act 2006 (ACT) s 23.

107 : Advance Personal Planning Act (NT) ss 11(a) and 20(2).

108 : Powers of Attorney Act (NT) s 16(b).

109 : Ibid. ss. 55A-55C. Note that advance personal plans may be registered with the Public Trustee, but for a dealing in land made in the exercise of authority given to a decision maker appointed by a plan to be or to become effective, must be registered by the Registrar-General.

110 : Powers of Attorney Act 2006 (Tas) s 16.

111 : Powers of Attorney Act 2014 (Vic) s 39(1), (2) and (3).

112 : The Margaret Mitchell (1858) 166 ER 1174.

113 : Ibid. 1184. Also quoted in Dynayski v Grant [2004] NSWSC 1187, [19].

114 : Watson v Watson [2002] NSWSC 919, [49] and Dynayski v Grant [2004] NSWSC 1187, [19].

115 : (1983) 12 Aust Crim Rep 1, 14.

116 : Sutton v Sutton [2012] SASC 186 [20].

117 : Powell v Thompson [1991] 1 NZLR 597, 605.

118 : Watson v Watson [2002] NSWSC 919, [49].

119 : See for example, Greenland v Intellectually Disabled Citizens of Queensland [2000] QSC 84 [30]; Re KJS [2003] QGAAT 27 [61] and Klotz & Klotz v Neubauer & Klotz [2001] SASC 454 [33]-[37].

120 : Powers of Attorney Act 1998 (Qld) Schedule 1 ss 6, 7 and 10 and Powers of Attorney Act 2006 (ACT) Schedule 1 ss 1.6 and 1.7.

121 : Powers of Attorney Act 2014 (Vic) s 21.

122 : Powers of Attorney Act 1998 (Qld) s 66. For an example of awards of compensation for such losses see, Moylan v Richards [2010] QSC 327.

123 : Powers of Attorney and Agency Act 1984 (SA) s 7 and Guardianship and Administration Act 1990 (WA) ss 107(1)(a).

124 : Powers of Attorney Act 2000 (Tas) s 32A(1).

125 : Powers of Attorney Act 2014 (Vic) s 63(1)(a) and (b).

126 : Advance Personal Planning Act (NT) s. 21(1)(d).

127 : Powers of Attorney Act 2003 (NSW) s 9 and Powers of Attorney Act 1998 (Qld) s 77.

128 : Powers of Attorney Act 1998 (Qld) ss 67 and 77.

129 : Powers of Attorney Act 2000 (Tas) s 30(1)(b) and (c).

130 : Powers of Attorney and Agency Act 1984 (SA) Schedule 1.

131 : Powers of Attorney Act 1998 (Qld) s 73; Powers of attorney Act 2014 (Vic) ss 64 and 65 and Powers of Attorney Act 2006 (ACT) s 42. For examples of conflict transactions, see Re FAA [2008] QGAAT 3; Re MV [2005] QGAAT 46 and Public Trustee of Queensland v Ban [2011] QSC 380. For an example of a case in which an attorney was excused for his breach of his obligation not to enter a conflict transaction see, DBU [2015] QCAT 495. For a case in which the law on this matter was considered in detail see, Ede v Ede [2006] QSC 378.

132 : Cohen v Cohen [2016] NSWSC 336.

133 : Powers of Attorney Act 1998 (Qld) s 82 and 109A.

134 : Powers of Attorney and Agency Act 1984 (SA) s 9.

135 : Powers of Attorney Act 2014 (Vic) s 59.

136 : Guardianship and Administration Act 1990 (WA) ss 107(1)(c) and 109.

137 : Powers of Attorney Act 2006 (ACT) s 53(2).

138 : For an example see, Re GMAV [2006] QGAAT 88

139 : For an example QCAT's predecessor tribunal granting leave to an attorney to resign, appointing an administrator but dismissing an application for a guardianship order see, Re VGM [2003] QGAAT 22. See also Re MLA [2006] QGAAT 91.

140 : Powers of Attorney Act 2003 (NSW) ss 35 and 36.

141 : Guardianship and Administration Act 1990 (WA) s 109.

142 : Powers of Attorney Act 2000 (Tas) s 32A.

143 : Powers of Attorney Act (NT) s 15(1).

144 : Advance Personal Planning Act (NT) s. 19.

145 : Ibid. s. 34(a).

146 : Ibid. s. 34(b).

147 : Ibid. s 62

148 : Ibid. ss. 22(2) and (3) and 23.

149 : Ibid. s. 22(5).

150 : Ibid. s. 22(50(c).

151 : Ibid. s. 22(5A).

152 : Ibid. s 22(6).

153 : Ibid. s. 22(6A) and (7).

154 : Ibid. s. 22(8)}

Section 23 of the Act defines the term; "to exercise substituted judgment" to mean:
  1. to give effect to an advance care statement;
  2. to exercise a decision maker's decision-making authority in the way they reasonably believe the maker would have done.

The section goes on to provide that a decision maker is excused from exercising substituted judgment if they reasonably believe that one or more of the following applies:
  1. exercising substituted judgment is impracticable;
  2. exercising substituted judgment would be unlawful;
  3. exercising substituted judgment would impose a burden on another person that is so unreasonably onerous that it is justifiable to override the maker's wishes;
  4. where the case is one of giving effect to an advance care statement, and there is no reasonable possibility the maker would have intended the statement to apply in the circumstances;
  5. exercising substituted judgment would be so unreasonable that it is justifiable to override the maker's wishes.{{Ibid. s 23.

155 : Ibid. s. 23(3).

156 : Powers of Attorney Act 1998 (Qld) s 69, Powers of Attorney Act 2014 (Vic) s 27 and Powers of Attorney Act 1980 (NT) s 10. For examples of such implication see, Powers of Attorney and Agency Act 1984 (SA) s 13 and Advance Personal Planning Act (NT) s. 20(1).

157 : Powers of Attorney Act 1998 (Qld) s 85; Powers of Attorney Act 2014 (Vic) s 66; Powers of Attorney Act 2006 (ACT) s 47 and Guardianship and Administration Act 1990 (WA) ss 107(1)(b).

158 : Advance Personal Planning Act (NT) s. 30

159 : Powers of Attorney Act 1998 (Qld s 86) and Powers of Attorney Act 2006 (ACT) s 48.

160 : Advance Personal Planning Act (NT) s 31

161 : Re RWM [2006] QGAAT52

162 : Ibid. [34]

163 : Ibid [40]

164 : Ibid. [42]

165 : Powers of Attorney Act 2006 (ACT) s 45(2) and (3)

166 : Powers of Attorney Act 1998 (Qld) s 81

167 : Advance Personal Planning Act (NT) ss 28 and 29

168 : Powers of Attorney 2014 (Vic) ss 21(2)(c)(iii) and 63(1)(e)

169 : Ibid. s 74

170 : Powers of Attorney Act 2003 (NSW) s 11.

171 : Ibid. s 11(2) and Schedule 3 cl 1. The term "close friend" of a maker means another individual who has a close personal relationship with the maker and a personal interest in their welfare. The term "relative" of the maker means; a mother, father, wife, husband, daughter, son, step-daughter, step-son, sister, brother, half-sister, half-brother or grandchild of the maker. If the maker is a party to a domestic relationship within the meaning of the Property (Relationships) Act 1984 (NSW), any person who is a relative of the kind just set out, of either party to the relationship, is a relative for the purpose of the gift-giving provision.

172 : Powers of Attorney Act 1998 (Qld) s 88 and Powers of Attorney Act 2000 (Tas) s 31(3) and (4).

173 : In Queensland a "relation" of the maker is their spouse, a person related to the maker by blood, marriage or adoption or because of a de facto relationship, foster relationship or a relationship arising because of a legal arrangement; such as a court order for custody or a trust arrangement between trustee and beneficiary. A "relation" is also a person on whom the maker is completely or mainly dependent, a person who is completely or mainly dependent on the maker or a person who is a member of the same household as the maker. A "close friend" of the maker, means another person who has a close personal relationship with the maker and a personal interest in their welfare. See, Powers of Attorney Act 1998 (Qld) schedule 3.

174 : Powers of Attorney Act 2006 (ACT) ss 38 and 89.

175 : Ibid. s 39(1), (2)(a) and (5). In the Australian Capital Territory a "relative" is a person related to the maker by blood, affinity or adoption. A "close friend", of the maker, means someone who has a close personal relationship with the maker and a personal interest in their welfare.

176 : Ibid. s 39(2)(a).

177 : Ibid. s 39(2), (3) and (4).

178 : Powers of Attorney Act 2014 (Vic) ss 67 and 69.

179 : Ibid. s 67. As at 19-11-2015, records had to be kept in relation to relevant gifts valued at $100 or more.

180 : Ibid. s 77.

181 : Ibid. s 135.

182 : Ibid s. 68

183 : Advance Personal Planning Act (NT) s. 32(1).

184 : Ibid. s 32(2)

185 : Ibid. s.32(3).

186 : Ibid. s. 32(4).

187 : Ibid. s.33(1)(a)(i).

188 : Ibid. s.33(1)(a)(ii).

189 : Ibid. ss. 33 and 59(2)(c).

190 : Ibid. s. 33(2).

191 : Ibid. s. 33(2)(b) and (4).

192 : Ibid. ss. 33(3) and (4) and 59(2)(c).

193 : Ibid. s. 21(1)(d). As to the common law see, 10.7. 2 below.

194 : Bryant v La Banque du Peuple [1893] AC 170, 177.

195 : Tobin v Broadbent [1947] HCA 46; (1947) 75 CLR 378, 401. The sentence quoted by Dixon J is from Russell J in Reckitt v Barnett Pembroke and Slater Ltd (1928) 2 KB 244, 268 a judgment approved in the House of Lords in Reckitt v Barnett Pembroke and Slater Ltd (1929) AC 176, at 183 (Lord Hailsham LC) and 195 (Lord Warrington). See also, Wong v Wong [2008] NSWSC 330 [47].

196 : Powers of Attorney Act 2003 (NSW) ss 12 and 13

197 : Ibid. schedule 3, items 2 and 3.

198 : Powers of Attorney Act 1998 (Qld) s 89.

199 : Powers of Attorney Act 2000 (Tas) s 31(5).

200 : Powers of Attorney Act 2006 (ACT) s 40.

201 : Ibid. s 41.

202 : Powers of Attorney and Agency Act 1984 (SA) s 7, Instruments Act 1958 (Vic) s 125D(5), Guardianship and Administration Act 1990 (WA) s107(1)(a).

203 : However since 17March 2014, the Powers of Attorney Act (NT) has effect only in relation to enduring powers of attorney made before that date.

204 : Powers of Attorney and Agency Act 1984 (SA) s 11(1)(c), Powers of Attorney Act 1980 (NT) s 15(2)(c) and Guardianship and Administration Act 1990 (WA) s 109(1)(c).

205 : Powers of Attorney Act 2000 (Tas) ss 4, 9 and 30.

206 : Advance Personal Planning Act (NT) s. 55A.

207 : Powers of Attorney Act 2003 (NSW) s 25, Powers of Attorney Act 1998 (Qld) s 34, Powers of Attorney Act 2000 (Tas) s 42, Powers of Attorney Act 2014 (Vic) s 138, Guardianship and Administration Act 1990 (WA) s104A, Powers of Attorney Act 2000 (ACT) s 89 and Advance Personal Planning Act (NT) s 88 and Advance Personal Planning Regulation (NT) reg. 8 and the Schedule.

208 : Powers of Attorney Act 2000 (Tas) ss 4, 42, 43 and 47.

209 : PG and KRL [2010] WASAT 30.

210 : Protected Estates Act 1983 (NSW) s 75(5).

211 : Powers of Attorney Act 2003 (NSW) s 37, Guardianship Act 1987 (NSW) s 25F(d). For a case in which the Tribunal turned an application for a review of the making of an enduring power of attorney into an application for a financial management (administration) order see, ALC [2011] NSWGT 6.

212 : Guardianship and Administration Act 2000 (Qld) s 22.

213 : Ibid. s 23.

214 : Powers of Attorney and Agency Act 1984 (SA) s 10. It is assumed that by necessary implication that an administration order made by the Guardianship Board would have the same effect or at least would take precedence over the power of attorney while the administration order was in effect.

215 : Guardianship and Administration Act 1995 (Tas) s 53.

216 : Powers of Attorney Act 2000 (Tas) s 33.

217 : Powers of Attorney Act (Vic) s 83(1). For an example of a case in which VCAT made an administration order, but did not authorise the attorneys under an enduring power of attorney (financial) to exercise any the powers under the enduring power of attorney see, IRB (Guardianship) [2016] VCAT 596.

218 : Guardianship and Administration Act 1990 (WA) s 108. For a case in which the Tribunal considered that the enduring power of attorney was not operating to protect the interests of the maker and consequently appointed an administrator and then revoked the enduring power of attorney see, JJB & ERB [2006] WASAT 110.

219 : Guardianship and Management of Property Act 1991 (ACT) s 62(2)(c) and (4).

220 : Guardianship of Adults Act 2016 (NT) ss 10 to 15.

221 : Ibid. s 101(2)(b).

222 : The repeal of the Aged and infirm Persons Property Act (NT) occurred immediately after the commencement of the Guardianship of Adults Act (NT) on 28 July 2016 as a result of the coming into force of the Advance Personal Planning Amendment Act (NT) (2016). S. 28 of that short-lived Act repealed the Aged and infirm Persons Property Act (NT). The Advance Personal Planning Amendment Act (NT) (2016), which contained the sections which provided for the transformation of the then current protection orders made in the Supreme Courts into guardianship orders made by NTCAT and other matters referred to in the next paragraph and the footnote at the end of the paragraph, itself expired the day after it commenced (i.e. 29 July 2016). This explains why the relevant sections are not in the version of the Advance Personal Planning Act (NT) currently in force.

223 : Advance Personal Planning Act (NT), s 104B. Note also that any applications to the Supreme Court for protection orders under the repealed Aged and infirm Persons Property Act (NT), pending on 28 July 2016, were to be dealt with by the Court as if that Act had not been repealed, but any protection order made by the Court became (or becomes) a guardianship order under the Advance Personal Planning Act 2016 (NT), by operation of s 104C of that Act. Similarly any other application under the repealed Act, pending on the same day were to be dealt with the same way and became (or becomes) an order made under the Advance Personal Planning Act 2016 (NT), by operation of s 104D of that Act.

224 : Guardianship of Adults Act 2016 (NT), s 101 and Northern Territory Civil and Administrative Tribunal Act (NT) s 141.

225 : Ibid. ss. 56-64.

226 : For an example of a tribunal being satisfied that the management of the maker's finances by her joint enduring attorneys was appropriate and that it was appropriate for them to continue to act despite the concerns of other relatives, see Re HIO [2006] QGAAT 75.

227 : Re DEM [2005] QGAAT 59.

228 : Ibid. [103]-[105].

229 : Ibid. [106] and Powers of Attorney Act 1998 (Qld) s 87.

230 : Ibid. [107] and [137]. See VK [2012] QCAT 117 for a case in which QCAT appointed VK's son and her enduring attorney CK as administrator of her estate for one year in order to get him to provide a financial management plan and accounts, and to take action to facilitate the sale of his mother's real property in order for her outstanding nursing home fees and her current and continuing expenses.

231 : Szozda v Szozda [2010] NSWSC 804 [16] and [19].

232 : See Powers of Attorney Act 2003 (NSW) s. 34. For an example see, TCM [2011] NSWGT 9.

233 : Powers of Attorney Act 2003 (NSW) s 35(1).

234 : TAX [2010] NSWGT 17.

235 : KTC [2011] NSWGT 23. For detailed consideration of "a genuine concern for the welfare of [the person the subject of the application]" see, AJC [2007] NSWGT 15. See also QAG [2007] NSWGT 12.

236 : Powers of Attorney Act 2003 (NSW) s 35(2) and (3).

237 : For a case in which the tribunal (now NCAT), after receiving evidence of the appropriate management of the maker's finances by the enduring attorney and the maker's desire that she continued as her attorney, was satisfied that the current situation reflected the maker's views and her best interests and dismissed the application to review the enduring power of attorney see, QQM [2011] NSWGT 2.

238 : For an example see CNI [2008] NSWGT 17; a case in which a daughter was removed as a joint and several enduring attorney with her brother of their mother on the grounds that while the son had a good working relationship with those responsible for their mother's (CNI) day to day care, the daughter did not. Further that it was in CNI's interests that the daughter be removed leaving the son as sole enduring attorney. For a case in which the inability of two, joint enduring attorneys to work together led to them being replaced as financial managers by the NSW Trustee see, HND [2011] NSWGT 13.

239 : For an example see, FDT [2010] NSWGT 4. In that case the maker had appointed a Mrs TAN and a Mr QKT as joint enduring attorneys. Mr QKT died so the enduring power of attorney lapsed by operation of s. 46(1) of the Powers of Attorney Act 2003 (NSW). However, the then Guardianship Tribunal reinstated the power of attorney and appointed Mrs TAN as the substitute attorney to replace Mr QKT. The Tribunal found that there was a continuing need for the maker's, Mrs FDT's, finances to be managed in her best interests by a caring family member which Mrs TAN was. While this is an elegant solution, whether it is consistent with the spirit of the Act to reinstate an enduring power of attorney for which the maker appointed joint attorneys by appointing the remaining attorney as the substitute attorney and so the sole attorney is an open question.

240 : For a case in which an attorney under an enduring power of attorney was ordered to lodge accounts with the tribunal (now NCAT) revealed the need to appoint a financial manager what remained of the maker's financial resources see, TKX [2010] NSWGT 10. For an example of the tribunal (now NCAT) reviving a lapsed enduring power of attorney by appointing two new attorneys supported by all those who attended the hearing, a less intrusive approach than making a financial management order see, YNB [2012] NSWGT 4.

241 : For a case in which an applicant for a review of the operation of an enduring power of attorney further appealed their concerns to the Administrative Appeals Tribunal, see IS v Public Guardian & Ors [2009] NSWADTAP 24.

242 : For an example of a review of the operation and effect of an enduring power of attorney leading to its revocation on the grounds first that substantial expenditure by the attorney did not benefit the maker (and involved the giving of gifts contrary to the terms of the power and the legislation) and second involved a conflict between the interests of the maker and those of the attorney, see, FNB [2010] NSWGT 9. In that case the Tribunal also appointed the NSW Trustee as the maker's financial manager (administrator) and the Public Guardian as her guardian.

243 : Powers of Attorney Act 2003 (NSW) s 36(4).

244 : Szozda v Szozda [2010] NSWSC 804 [41].

245 : Powers of Attorney Act 2003 (NSW) s 36(5).

246 : Ibid. s 36(6).

247 : Powers of Attorney Act 2003 (NSW) s 37, Guardianship Act 1987 (NSW) s 25F(d). For some examples see, BSX [2009] NSWGT 5 and ALC [2011] NSWGT 6.

248 : Ibid. ss 36 and 38.

249 : [2015] NSWSC 1794

250 : Powers of Attorney Act 1998 (Qld) ss 109A and 110. Also, s 109 notes that the inherent parens patriae jurisdiction of the Supreme Court is not affected by this legislation.

251 : For the purposes of these applications, the maker's family consists of the following: the maker's spouse, each of their children who is 18 years or more (including a stepchild, an adopted child, and a person for whom the maker was foster-parent or guardian when the person was a child), each of the maker's parents (including a step-parent, adoptive parent, foster-parent and guardian). If there is none of the above, then each of the maker's siblings who is 18 years or more (including a step-sibling, adopted sibling, and foster-sibling). See s 110(5).

252 : Powers of Attorney Act 1998 (Qld) s 110(3)(f) and (4). QCAT or the Court may join parties to these applications and allow interested persons to take part. See s 110(4).

253 : Ibid. s 111. For examples see, Re CEJ [2005] QGAAT 30, Re MV [2005] QGAAT 46 and Re CAC [2008] QGAAT 45.

254 : For a case in which an interim order was sought but in which QCAT considered the evidence of a geriatric registrar and a neuropsychiatric assessment for capacity, was not able to conclude that neither an 86 year old woman nor her husband whom she had recently appointed as her attorney under an enduring power of attorney appointed could not understand the nature and consequences of decisions about her financial affairs, see MIJ [2016] QCAT 276. In that case, QCAT was unable to conclude from that evidence that MIJ could not make decisions freely and voluntarily and was not satisfied that the presumption of capacity had been rebutted by the evidence given to it. QCAT noted that the evidence from the applicant suggested that MIJ's husband had engaged in imprudent financial decisions in the past, but QCAT pointed out that it was MIJ's capacity that was in issue in this application, see [11].

255 : Ibid. s 113.

256 : Ibid. s 113(3).

257 : See for example, Re LCG [2003] QGAAT 15, Re DEM [2005] QGAAT 59 and Re RWM [2006] QGAAT 52.

258 : Powers of Attorney Act 1998 (Qld) s118(1). For examples see, Re CEJ [2005] QGAAT 30 and Re CAB [2007] QGAAT 23.

259 : Ibid. s 118(2).

260 : For an example, see BME [2014] QCAAT 67.

261 : Powers of Attorney Act 1998 (Qld) s 122.

262 : For a case in which it was decided that a particular family member had a "proper interest" in the matter see, Sutton v Sutton [2012] SASC 186.

263 : As noted in 10. 6. 1. 5. above, an enduring attorney may not renounce their role under an enduring power of attorney during the time the maker is incapable without the permission of the Supreme Court.

264 : Powers of Attorney and Agency Act 1984 (SA) s 11.

265 : Powers of Attorney Act 2000 (Tas) s 33(1).

266 : Ibid. ss 39 and 40.

267 : For a clear case of this provision in action see, THK (Review of Enduring Power of Attorney Guardianship and Administration) [2013] TASGAB 13. In that case the evidence that THK did not have sufficient mental capacity to execute an enduring power of attorney was clear and uncontested. The Board the proceeded to make guardianship and administration orders. See also QNH (Review Enduring Powers) [2013] TASGAB 8.

268 : Powers of Attorney Act 2000 (Tas) s 33(2). For a description of the Board conducting a review of the appointment of an attorney under an enduring power of attorney see, KB and RB v Guardianship and Administration Board [2007] TASSC 45. For a case in which the enduring power of attorney was revoked on the grounds first that the maker did not understand the nature and effect of the document and that the attorney did not exercise the care, diligence and skill that a prudent person of business would in managing the affairs of another person see, NPG (Review Enduring Power) [2011] TASGAB 22.

269 : Ibid. s 33(4).

270 : For a case on a request for advice and direction but in which direction not given see, KOI (Enduring Powers) [2011] TASGAB 7. For a case on change of enduring attorney and a direction to the new attorney to seek legal advice see, FHK (Review Enduring Powers) [2011] TASGAB 18.

271 : Ibid. s 35.

272 : Powers of Attorney Act 2014 (Vic) s 142.

273 : Powers of Attorney Act 2014 (Vic) s 116(1).

274 : The nearest relative is the relative first person, 18 years or older, the elder or eldest of two or more relatives, regardless of sex, listed in the following list: (a) spouse or domestic partner; (b) child; (c) parent or step-parent; (d) sibling or step-sibling; (e) grandparent; (f) grandchild; (g) uncle or aunt; (h) nephew or niece. See Powers of Attorney Act 2014 (Vic) ss 122(1) and 3(1). For the further definition of "domestic partner see, s 3(2) and in relation to a person's siblings see, s 3(3).

275 : Powers of Attorney Act 2014 (Vic) s 122(1).

276 : Ibid. s 122(2).

277 : Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 59(1)(a)(i).

278 : Powers of Attorney Act 2014 (Vic) s 124.

279 : Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 59(1)(a)(iii).

280 : Powers of Attorney Act 2014 (Vic) s 3(1) and (2).

281 : Ibid. s 3(1). See also footnote 192.

282 : Ibid. s 123(4).

283 : Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 99(1)(b) and s 116(2)(a) or (b).

284 : Powers of Attorney Act 2014 (Vic). See ss 64 and 65, 65(4) to (6) in particular.

285 : Ibid. s 120.

286 : Ibid. s 120(2).

287 : s 117(1).

288 : Ibid. s 117(2).

289 : Ibid. s 118.

290 : Ibid. s 119.

291 : Ibid. s 121. We suggest that the wording of s 120(1)(f) and (g) is wide enough to allow VCAT, on its own initiative, to give, in orders, what are in fact advisory opinions should it consider it necessary to do so in relation to an enduring power of attorney.

292 : Guardianship and Administration Act 1990 (WA) s 109.

293 : Ibid. s 3A.

294 : KS [2008] WASAT 29 and EW [2010] WASAT 91.

295 : Guardianship and Administration Act 1990 (WA) s 110.

296 : CS and JS [2014] WASAT 173, [29].

297 : Ibid. s 109(3).

298 : Ibid. ss 40 and 64. For a case in which WASAT considered it unsafe for an enduring power of attorney to be used and made an administration order, see CJS [2016] WASAT 42.

299 : For an example see, EW [2010] 91 in which the audit was ordered after the death of the maker of the enduring power of attorney. And for a case in which it was confirmed that WASAT's jurisdiction in relation to ordering audits does not end at the death of the maker of the enduring power of attorney, but in which an application for an audit was not granted see, HD [2016] WASAT 37.

300 : Ibid. s 109(1).

301 : Ibid. s 109(2).

302 : For an example see, VM and Y [2006] WASAT 245, 44 SR (WA) 104; LS [2016] WASAT 89 and FH [2016] WASAT 95.

303 : CS and JS [2014] WASAT 173.

304 : JS and CJ [2016] WASAT 14.

305 : Guardianship and Administration Act 1990 (WA) ss 104 and 110B

306 : RS and Anor and DV [2011] WASAT 144 [15]. For the case making it clear that this description of "full legal capacity" applied to the making of enduring powers of attorney see, MB v EM [2013] WASAT 106 [33]. For a less stringent view of the degree of understanding required of a maker of an enduring power of attorney when making it see 10. 3. 1 above generally and Lindsay J in Scott v Scott [2012] NSWSC 1541 at [221] to [227] in particular.

307 : Ibid. [51]. See Guardianship and Administration Act 1990 (WA) s 109(1)(c).

308 : Powers of Attorney Act 2006 (ACT) s 62(2) and (4).

309 : Ibid. ss 80, 81, 83 and 84.

310 : A relative of the maker is a person related by blood, affinity or adoption to the maker or a domestic partner of the maker. See Powers of Attorney Act 2006 (ACT) Dictionary. The meaning of "domestic partner" is set out in the Legislation Act 2001 (ACT) s 169.

311 : Guardianship and Management of Property Act 1991 (ACT) s 62(3) and Powers of Attorney Act 2006 (ACT) s 74.

312 : Guardianship and Management of Property Act 1991 (ACT) s 65.

313 : If the Tribunal asks the Public Trustee to assist it by examining and reporting on books, accounts or other records of transactions carried out by the enduring attorney, the Public Trustee must assist. See Powers of Attorney Act 2006 (ACT) s 83(2). See also s 83(3).

314 : For a case on an application to suspend rather than revoke an enduring power of attorney see, Joan Whyte (Guardianship and Management of Property) [2010] ACAT 23.

315 : Guardianship and Management of Property Act 1991 (ACT) s 62(2).

316 : Ibid s 62(4).

317 : Ibid. s 66.

318 : Ibid. s 84(2).

319 : Ibid. s 84(3) and (4).

320 : Advance Personal Planning Act (NT) ss 56-65.

321 : Guardianship of Adults Act (NT) ss 77 and 11-20, and 18 in particular.

322 : Advance Personal Planning Act (NT) ss 57 and 22 and the Guardianship of Adults Act (NT) ss 78 and 4.

323 : Advance Personal Planning Act (NT) s 58.

324 : Ibid. ss 59, 21(1) and 22.

325 : Ibid. s. 21(2).

326 : Ibid.. s. 31(2)(b)(ii).

327 : Ibid. s. 32(2).

328 : Ibid. s. 33(3).

329 : Ibid. s 35(1)(b).

330 : Ibid. s 36(1)(b) and (4). In this context a professional decision maker is one of the following: the Public Trustee; the Public Guardian; a licensed trustee company or another person who carries on the business of, or including, providing services as a decision maker.

331 : Ibid. s 37.

332 : Ibid. ss 3 and 59(1) and (2). In this context the term "agent" means a decision maker, a guardian (appointed by NTCAT) for the person, an enduring attorney for the maker or another person who has lawful authority to manage the maker's affairs.

333 : Ibid. s 59(3).

334 : Ibid. s. 59(4).

335 : Ibid. s 60(2) b).

336 : Ibid. s. 61(2)(h). Also the Act provides examples of what major changes in circumstances might include. These are: a person appointed as decision maker losing decision-making capacity; the maker getting divorced or becoming estranged from other family members; (c) a decision maker being convicted of an offence that makes it unsuitable for them to continue to be a decision maker.

337 : Ibid. s. 61(1) and (2). In this context the term "agent" means a decision maker, a guardian (appointed by NTCAT) for the person, an enduring attorney for the maker or another person who has lawful authority to manage the maker's affairs.

338 : Ibid. s. 61(3).

339 : Ibid. s. 61(4).

340 : Ibid. s. 61(5).

341 : Ibid. s. 62.

342 : Guardianship of Adults Act (NT) s 78.

343 : Ibid. s 4(2).

344 : Ibid. s 4(3).

345 : Advance Personal Planning Act (NT) s 22(5).

346 : Guardianship of Adults Act (NT) s 4(4).

347 : Guardianship of Adults Act (NT) s 3. Note that an interested person in this context means any of the following: a relative of the adult (as defined in s.7of the Act); a guardian for them; the Public Guardian; the Public Trustee; an agent for the person (as agent for a person in this context is a guardian of the person; a decision maker appointed by the person in an advance personal plan, when the person had planning capacity or if the person made an enduring power of attorney before 17 March 2014, and enduring attorney appointed under that power of attorney; or any other person who has lawful authority to make decisions for the person about personal matters or financial matters; a person who is primarily responsible for providing support or care to the person or any other person who has a genuine and sufficient interest in protecting the person's best interests.

348 : Would such a "support network" include persons who support the person to make his or her own decisions?

349 : Powers of Attorney Act (NT) ss, 5, 11 and 15. An agent for the maker of an enduring power of attorney means any of the following; a decision maker appointed by the person under the Advance Personal Planning Act (NT); a guardian appointed for the person under the Adult Guardianship Act (NT); a manager appointed for the person under the Aged and Infirm Persons' Property Act (NT) and any other person who has lawful authority to manage the person's affairs.

For a Northern Territory case involving a person with limited intellectual capacity who gave a power of attorney to a friend who then, often acting as attorney under the power of attorney , took advantage of the maker of the power of attorney see, Mattila v Gardner (No 2) [2013] NTSC 32. See also 3. 3. 5 and 3. 5. 1 in Chapter 3 relating to quantum meruit and undue influence.

350 : Powers of Attorney Act (NT) s. 15(1) and Note for Part III.

351 : Powers of Attorney Act 2014 (Vic) ss 77-80.

352 : Ibid. s 135.

353 : Ibid. s 84

354 : Parliament of Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 57th Parliament, First Session, Thurs, 26 June 2014, 2394.

355 : Ibid. 2394.

356 : Powers of Attorney Act 2014 (Vic) s 86.

357 : s 85

358 : s 90(1).

359 : A critical assessment of supported decision-making for persons aging with intellectual disabilities. Kohn NA, Blumenthal JA. Disabil Health J. 2014 7(1 Suppl):S40-3.

360 : Bigby, C., Whiteside, M., & Douglas, M. (2015). Supporting People with Cognitive Disabilities in Decision Making - Processes and Dilemmas. Melbourne: Living with Disability Research Centre, La Trobe University

361 : Ibid. s 91. Those disqualified from being appointed as supportive attorneys are: 1, care workers namely persons who perform services for the care of the appointor and receives remuneration for those services from any source, but does not include a person who receives a carer payment or other benefit from the Commonwealth or a State or a Territory of the Commonwealth for providing home care for the individual or; 2, a health provider, that is a person who provides health care in the practice of a profession or in the ordinary course of business or; 3, an accommodation provider, that is a person who is, in a professional or administrative capacity, directly or indirectly responsible for or involved in the provision of accommodation to the appointor. See s 3.

362 : Ibid. s 92. While it is normal in legislation for the singular to include the plural, the Interpretation of Legislation Act 1984 (Vic) s 37 provides that that is the case; "unless the contrary intention appears". In the case of s 92 of the Powers of Attorney Act 2014 (Vic), it appears to us that the contrary intention does appear and that the intention of the section is that if more than one supportive attorney is appointed, they are to act separately in relation to the matters specified in the appointment they are appointed to act in relation to. An obvious example is that one supportive attorney could be appointed to act in relation to financial matters and another appointed to act in relation to personal matters. If we are wrong, then supportive attorneys could be appointed to act separately from one another in relation to the matters both or even more than both are appointed to act in relation to separately.

363 : Ibid. s 93.

364 : Ibid. ss 94-98.

365 : Ibid. s 99.

366 : Ibid. ss 100, 103-108.

367 : Ibid. s 101

368 : Ibid. s 87(1) and (2). Note that information may sometimes be obtained by a supportive attorney under the provisions of the Disability Act 2006 (Vic), the Health Records Act 2001 (Vic) and the Privacy and Data Protection Act 2014 (Vic).

369 : Ibid. s 87(3).

370 : Ibid. s 88.

371 : Ibid. s 89. In s 89(2) the term "significant financial transaction" is defined to include: (a) making an investment for the principal or continuing an investment of the principal (subject to s 89(3)), including taking up rights to issues of new shares or options for new shares to which the appointor becomes entitled by appointor's existing shareholding; or (b) undertaking any real estate transaction for the appointor, excluding entering into a residential tenancy for a premises in which the appointor lives or intends to live; or (c) dealing with land on behalf of the appointor including taking out a loan on behalf of the appointor or giving a guarantee on behalf of the appointor; or (d) undertaking a transaction for the appointor involving the use of appointor's property as security for an obligation; or (e) buying and selling substantial personal property on behalf of the appointor.

372 : Ibid. s 90(1).

373 : Ibid. s 90(2).

374 : Ibid. s 136.

375 : Ibid. s 116(2).

376 : Ibid. s 121.

377 : The nearest relative is the relative first person, 18 years or older, the elder or eldest of two or more relatives, regardless of sex, listed in the following list: (a) spouse or domestic partner; (b) child; (c) parent or step-parent; (d) sibling or step-sibling; (e) grandparent; (f) grandchild; (g) uncle or aunt; (h) nephew or niece. See Powers of Attorney Act 2014 (Vic) ss 122(1) and 3(1). For the further definition of "domestic partner see, s 3(2) and in relation to a person's siblings see, s 3(3).

378 : Powers of Attorney Act 2014 (Vic) s 122(1).

379 : Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 59(1)(a)(i).

380 : Powers of Attorney Act 2014 (Vic) s 124.

381 : Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 59(1)(a)(iii).

382 : Powers of Attorney Act 2014 (Vic) s 3(1) and (2).

383 : Ibid. s 3(1). See also footnote 192.

384 : Ibid. s 123(4).

385 : Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 99(1)(b) and s 116(2)(a) or (b).

386 : Powers of Attorney Act 2014 (Vic). s 120(3).

387 : Ibid. s 121. . We suggest that the wording of s 120(2)(d) is wide enough to allow VCAT, on its own initiative, to give, in orders, what are in fact advisory opinions should it consider it necessary to do so in relation to a supportive attorney appointment.


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