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 that 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 which a person could make if they wanted their attorney to continue to manage their financial affairs after they lost the capacity to manage them themselves and to revoke the power of attorney.

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 and the Northern Territory, State guardianship tribunals and ACAT in the Australian Capital Territory have been given the task of reviewing the making and the operation of enduring powers of attorney. They have also been given the power to revoke or vary enduring powers of attorney and to call attorneys to account. In South Australia and the Northern Territory this supervisory role is held by the Supreme Court.

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 or rescind their appointment of an attorney.

10. 3. Capacity to make enduring powers of attorney and to revoke them – the legal tests

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.

10. 3. 1. The common law tests – used in New South Wales, South Australia, Western Australia and the Northern Territory

In New South Wales, South Australia, Western Australia and the Northern Territory 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.

The starting point for the common law is its presumption that an adult has the mental capacity to enter any legal transaction or make any legal document such as a will or a power of attorney. However, where the question of mental capacity is relevant, 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.^[3]

The approach of the High Court judges in Gibbons v Wright acknowledges that many of us will not know the nature and effect of most legal documents unless those matters are explained to us. 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 enduing 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 and that 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.^[4]

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 ½ 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.^[5]

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.^[6]

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 they 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.^[7]

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.^[8] 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.^[9]

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^[10] that to apply Young J’s approach in Ranclaud v Cabban^[11], 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.^[12]

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.^[13]

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^[14], 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.^[15]

In the 2010 case, Szozda v Szozda, Barrett J of the Supreme Court of New South Wales followed the Australian and English authorities set out above.^[16] 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.^[17]

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?^[18]

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.^[19]

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.

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.^[20] 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.^[21]

10. 3. 1. 1. Standard and burden of proof of capacity to make an enduring power of attorney

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.^[22] 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.^[23] 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.^[24]

10. 3. 2. Queensland and Tasmania

In Queensland the Powers of Attorney Act 1998 specifically retains the presumption of capacity.^[25] 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 exercising,

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, becomes 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.^[26]

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.^[27]

10. 3. 3. Victoria

In Victoria the legislation relating to enduring powers of attorney is found in Part XIA of the Instruments Act 1958. They were inserted in that Act in 2003 and follow the Queensland provisions closely but not identically. The Instruments Act 1958 (Vic) 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 conditions or limitations on, or instructions about, the exercise of the powers given to the attorney,

2. when the power of attorney is exercisable,

3. that once the power of attorney is exercisable, the attorney has the same powers as the maker had (when they were not under a legal incapacity) to do anything for which the power of attorney is given subject to any limitations or restrictions on exercising the powers included in it,

4. that the maker may revoke the enduring power of attorney at any time they are capable of making an enduring power of attorney,

5. that the power the attorney continues even if the maker subsequently ceases to have legal capacity, and

6. that at any time that the maker is not capable of revoking the enduring power of attorney, they are unable to oversee effectively the use of the power of attorney.^[28]

It should be noted that in Ghosn v Principle Focus Pty Ltd, in which Forrest J of the Supreme Court of Victoria set down the tests for capacity to make an enduring power of attorney and for determining standard and onus of proof issues, the question of whether the powers of attorney under consideration did or did not conform with the provisions of the Instruments Act 1958 (Vic) was not argued.^[29]

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.^[30]

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.^[31] 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.^[32]

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, Western Australia and the Northern Territory, specific but different statutory tests for capacity are used in the other three States 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.^[33]

10. 4. 1 The generic aspects of capacity 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 an estimation 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 as well as an assessment of the specific executive and functions of judgment, reasoning and planning which are relevant to decision making.

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. ^[34] As has been noted elsewhere, dementia may affect a person’s appraisal of others.^[35] Therefore, when undertaking assessments of people who wish to make an enduring power of attorney, it is important to undertake the interview in private.

Furthermore, regardless of the functions of the attorney (the “what” of the appointment), 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?

10. 4. 2 The application of the specific tests to the assessment of capacity

When assessing understanding of the following specific tests it is essential that the person is able to repeat, in their own words, their understanding of the test after it has been explained to them. As previously stated, in New South Wales, South Australia, Western Australia and the Northern Territory the test for capacity to make an enduring power of attorney is found in the following cases, outlined 10. 3. 1 above:

(i) Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright which outlined the principle of understanding the nature and effect of the instrument when explained;^[36]

(ii) Ranclaud v Cabban Young J which emphasised the need for the donor to 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;^[37]

(iii) Ghosn v Principle Focus Pty Ltd^[38] in which Forrest J of the Supreme Court explains and adopts the approach taken by Young J in Ranclaud v Cabban.

In New South Wales, the functions given under a power of attorney relate to financial matters. Accordingly, the donor 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. ^[39] 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, Victoria and the Australian Capital Territory, ^[40] ^[41] ^[42] ^[43] the test for the capacity to make an enduring power of attorney is found in the powers of attorney legislation, which specifies that the donor must understand:

(i) that they can state, specify or limit the powers to be given;

(ii) when the power of attorney begins;

(iii) that once the power of attorney begins, the attorney will have the power to make, and will have full control over the functions given to them;

(iv) that they may revoke the enduring power of attorney at any time they are capable of doing so;

(v) that the power of attorney continues if they become impaired, and 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.

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.

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

10. 5. 1. Who may be appointed?

Only adult men and women may be appointed enduring attorneys, however not only adults but also 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 an enduring attorney must be at least 18 years old which creates the assumption that only natural persons who are adults may be appointed enduring attorneys in that State.^[44] In Queensland and the Australian Capital Territory corporations that are neither the Public Trustee nor a trustee company cannot be appointed enduring attorneys.^[45]

10. 5. 2. Appointment procedures

The legislation of each State and Territory sets out procedures for a capable adult to appoint an enduring attorney.^[46] 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, Victoria, Western Australia, the Australian Capital Territory and the Northern 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.^[47] In Tasmania an enduring power of attorney is not legally effective until it is registered by the Recorder of Titles.^[48]

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, 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, 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 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.^[49] 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.^[50]

This approach was adopted in Victoria in 1983 and 2002 and 2004 in New South Wales.^[51] 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, 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.^[52]

In the 2002 New South Wales case^[53] Berecry M adopted The Margaret Mitchell approach and went on to quote from Thomas J in a New Zealand case:

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.^[54]

In the case of enduring powers of attorney, the maker may give binding instructions only when they are still capable. Instructions by an incapable maker 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 their 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, 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.^[55]

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 and the Australian Capital Territory 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.^[56]

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.^[57]

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.^[58]

While enduring attorneys have no statutory duty to act honestly or with reasonable diligence in New South Wales, Victoria, the Australian Capital Territory and the Northern 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 and 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.^[59] 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.^[60] In Tasmania there are different forms for enduring powers of attorney one conferring the particular powers set out in the form on the attorney and the other conferring on the enduring attorney the power to do all the things the maker may lawfully authorise an attorney to do.^[61] In South Australia, the form provides the maker with the same choices as the separate forms do in Tasmania.^[62]

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

Again in Queensland and the Australian Capital Territory the powers of attorney legislation imposes an obligation of 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.^[63]

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 guardian’s general duty to the person who appointed them.

10. 6. 1. 5. 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.^[64] In South Australia the leave of the Supreme Court is necessary.^[65] In Victoria the leave of VCAT is required.^[66] 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.^[67] In the Australian Capital Territory the leave of ACAT is required.^[68] In the Northern Territory an enduring attorney, once appointed, may not resign without the leave of the Supreme Court.^[69]

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.^[70] 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.^[71]

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.^[72] 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.^[73] 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.^[74]

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.^[75]

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.^[76] 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.^[77] 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.^[78] 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 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.^[79] 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.^[80] 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”.^[81]

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.^[82] 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.^[83]

Enduring attorneys 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 and 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.^[84]

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 addresses at least 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.^[85]

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.^[86]

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.^[87] The terms “relation” and “close friend” are defined in Queensland but not Tasmania.^[88]

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.^[89] 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 or to a charity with which the attorney has a connection.^[90] 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.^[91] 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.^[92]

10. 7. 1. 4. South Australia, Victoria, Western Australia and Northern Territory

There are no provisions in the South Australian, Victorian, Western Australian and Northern Territory legislation dealing with the giving of gifts. Consequently, there is doubt as to whether enduring attorneys in the three States can give gifts from the maker’s property to themselves and others. It is much clearer that enduring attorneys appointed or recognised in the Northern Territory cannot give gifts of an incapable maker’s property to themselves or members of the maker’s family without specific authority being provided in the enduring power of attorney.^[93] 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.^[94]

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."^[95]

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.^[96] 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.^[97]

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.^[98]

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.^[99]

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.^[100]

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.^[101]

As already noted in 10. 7. 1. 4 above, there are no provisions in the South Australian, Victorian, Western Australian and Northern Territory 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 … by necessary implication”, enduring attorneys in those States and the Northern Territory cannot give benefits to themselves or others.

It could be argued in South Australia, Victoria 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, 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.^[102] 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. 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.^[103] In Victoria VCAT has the power to “vary the effect of an enduring power of attorney”.^[104] This language may be wide enough to allow VCAT to add such a term to an enduring power of attorney in appropriate circumstances.

10. 8. Registration of enduring powers of attorney

In Tasmania and the Northern Territory enduring powers of attorney must be registered before they may be exercised by the enduring attorney.^[105]

10. 9. Recognition of enduring powers of attorney made elsewhere in Australia

All the Australian States and the two Territories, except South Australia, recognise enduring powers of attorney made elsewhere in Australia and allow them to be exercised in relation to either real or personal property within their boundaries.^[106] In Tasmania and the Northern Territory an enduring power of attorney must be registered before it may be exercised.^[107]

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 now 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.^[108]

10. 10. 1. New South Wales

In New South Wales if the Guardianship Tribunal, 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.^[109] It should also be noted that when either the Guardianship Tribunal or 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.^[110]

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 the Tribunal authorises.^[111] 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.^[112]

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 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.^[113]

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.^[114] 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.^[115] 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.^[116]

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 and the administrator has the same power to vary or revoke the power of attorney as the maker had when of full legal capacity.^[117]

10. 10. 7. Australian Capital Territory

In the Australian Capital Territory, ACAT may revoke the enduring power of attorney when making an administration order.^[118]

10. 10. 8. Northern Territory

In the Northern Territory when the Supreme Court makes an administration (protection) order, any enduring power of attorney is revoked to the extent to which it authorizes the enduring attorney to deal with property the subject of the protection order.^[119]

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.^[120] 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.

A 2005 Queensland case shows some of the more common ways an enduring attorney fails to carry out their responsibilities.^[121] 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 dependant 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.^[122]

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.^[123] 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.^[124]

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 Guardianship Tribunal to deal with that issue. Consequently the Supreme Court retained its established jurisdiction to deal with that matter.^[125] 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).

10. 11. 1. 1. Who may apply for and be party to a review?

In New South Wales both the Guardianship Tribunal 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 the Tribunal or Court, has a proper interest in the proceedings or a genuine concern for the welfare of the maker.^[126]

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 the Tribunal or Court joins as a party.^[127]

10. 11. 1. 2. Declarations of incapacity and invalidity

The Tribunal or 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 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 is invalid for any other reason, for example, the maker was induced to make it by dishonesty or undue influence.

If the review is about the operation and effect of an enduring power of attorney, the Tribunal or 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:

1. an order varying a term of, or a power conferred by, the power of attorney,

2. an order removing an attorney from office,

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,

5. an order directing or requiring any one or more of the following:

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

(b) that an attorney lodge with the Tribunal or Court a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power^[128],

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

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

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

(g) such other orders as the Tribunal or Court thinks fit.^[129]

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.^[130] It is suggested that both the Tribunal 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 the Tribunal or 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.^[131] 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 the Tribunal or Court making it.^[132]

As has been noted at 10. 10. 1 above, when either the Guardianship Tribunal or 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.^[133]

10. 11. 1. 3. Advice or directions

An enduring attorney may apply for advice or direction by the Tribunal or 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, the Tribunal or 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.^[134]

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.^[135] 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,^[136]

3. an attorney under the enduring power of attorney,

4. the Adult Guardian or Public Trustee, or

5. a person the Tribunal or Court considers an interested person.^[137]

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.^[138]

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,

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.^[139]

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.^[140] As an alternative it 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.^[141]

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.^[142]

10. 11. 2. 4. The Tribunal or 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.^[143]

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 ot the Court and that a copy of the auditor’s report be given to it and the applicant, or

3. the enduring attorney present a plan of management for approval.^[144]

10. 11. 3. South Australia

In South Australia the Supreme Court, but not the Guardianship Board, 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. 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,^[145]

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.^[146]

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.^[147] 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.^[148]

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 donor is over the age of 18 years and the Board thinks fit, appoint an administrator of his or her estate,

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.^[149]

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.^[150]

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, 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.^[151]

10. 11. 5. Victoria

In Victoria VCAT may deal with any matter or question relating to:

1. the scope of an attorney's powers under an enduring power of attorney,

2. the exercise of any power by an attorney under an enduring power of attorney or

3. any other thing in or related to the enduring power of attorney part of the Instruments Act 1958 (Vic).

VCAT may make a declaration, order, direction or recommendation about these matters as a result of an application.^[152]

10. 11. 5. 1. Who may apply for and be party to a review?

The following may apply to VCAT:

1. an attorney under the enduring power of attorney,

2. the maker of the enduring power of attorney,

3. the Public Advocate, or

4. another person whom VCAT is satisfied has a special interest in the affairs of the maker.^[153]

The maker, any enduring attorney and the Public Advocate are entitled to notice of the application, the hearing and any order made together with anyone in the following list that VCAT directs notice be given to:

1. the nearest relative of the maker,

2. the primary carer (if any) of the maker,

3. any guardian of the maker,

4. any person appointed as alternative guardian of the maker,

5. any administrator of the estate of the maker, and

6. any person whom VCAT is satisfied has a special interest in the affairs of the maker.^[154]

10. 11. 5. 2. Declaration of invalidity

VCAT does not have a direct power to make a declaration of incapacity in relation to the making of an enduring power of attorney, but it can make any declaration it considers necessary in relation to an enduring power of attorney.^[155] Also, it has the power to revoke an enduring power of attorney and may do so if it is satisfied that it is in the maker’s best interests to do so and that the maker currently lacks the capacity to make an enduring power of attorney.^[156]

However, VCAT may, on its own initiative or on application declare an

enduring power of attorney to be invalid if it is satisfied that:

1. the maker lacked capacity at the time the enduring power of attorney was made,

2. it does not comply with the requirements of the Instruments Act 1958 (Vic),

3. it is invalid for another reason, for example, the maker was induced to make it by dishonesty or undue influence.^[157]

Any enduring power of attorney declared to be invalid is void from the start.^[158]

10. 11. 5. 3. Advisory opinions, directions and other powers

VCAT may give an advisory opinion on any matter relating to an enduring power of attorney that is referred to it by application.^[159]

In addition VCAT, on its own initiative or on an application may:

1. make a declaration or make recommendations or give any directions it considers necessary in relation to an enduring power of attorney,

2. vary the effect of an enduring power of attorney,

3. suspend for a specified period an enduring power of attorney, either generally or in respect of a specific matter,

4. make any order it considers necessary in relation to an enduring power of attorney, and

5. may give directions to an attorney under an enduring power of attorney in respect of any matter.^[160]

VCAT, on its own initiative or on an application, may also order that:

1. an enduring attorney lodges with it accounts or other documents relating to the exercise of the power of attorney for a specified period,

2. the accounts be examined or audited by a person appointed by it and that a copy of the person's report be given to it and the applicant.^[161]

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.^[162] The Act does not affect the Supreme Court’s inherent jurisdiction.^[163] 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.^[164]

10. 11. 6. 1. Who may apply for the intervention of the Tribunal?

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.^[165]

10. 11. 6. 2. Orders the Tribunal can make

The orders that WASAT may make are limited in nature. 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. The orders that WASAT may make on the application of a person with a proper interest, including an enduring 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^[166],

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.^[167]

In addition to the orders just listed, ensuring 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.^[168]

Even though the orders WASAT may make are limited in nature, 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.^[169]

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).^[170] 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.^[171]

10. 11. 7. 1. Who may apply for and be party to a review?

The following may make applications 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,^[172]

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.^[173]

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.^[174]

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,^[175]

3. revoke the enduring power of attorney, or part of it or

4. make a declaration about the interpretation or effect of the enduring power of attorney.^[176]

If ACAT revokes the enduring power of attorney, it may appoint either a guardian or administrator (manager) for the estate of the maker.^[177]

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.^[178]

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.^[179] 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.^[180]

10. 11. 8. Northern Territory

In the Northern Territory, the Supreme Court has the power to deal with enduring powers of attorney at any time after the maker of the enduring power has become legally incapacitated. The Public Trustee or any other person who (in the Court’s opinion) has an interest in any property which may be dealt with by the maker of an enduring power 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.^[181]

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

^[2] Drew v Nunn [1879] UKLawRpKQB 48; (1879) 4 QBD 661.

^[3] [1954] HCA 17; (1954) 91 CLR 423, 438, [1954] HCA 17 [7].

^[4] NSW (1988) Conv R 55-385.

^[5] Re CEJ [2005 QGAAT 30[24].

^[6] Ibid. [26].

^[7] 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 Re W [2001] Ch 609 [20].

^[8] 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).

^[9] 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.

^[10] Sydney, Federation Press, 2005, 44.

^[11] NSW (1988) Conv R 55-385.

^[12] Ghosn v Principle Focus Pty Ltd [2008] VSC 574 [76].

^[13] Ibid. [77]

^[14] Re K, Re F [1988] Ch 310.

^[15] Ghosn v Principle Focus Pty Ltd [2008] VSC 574 [78].

^[16] Szozda v Szozda [2010] NSWSC 804.

^[17] Ibid. [28]-[30].

^[18] Ibid. [34].

^[19] Ibid. [120].

^[20] Powers of Attorney Act 2003 (NSW) s 19(1). The term “prescribed witness” is defined in s 19(2).

^[21] Szozda v Szozda [2010] NSWSC 804 [119].

^[22] [2008] VSC 574.

^[23] [2004] VSCA 235.

^[24] Ibid. [49].

^[25] Powers of Attorney Act 1998 (Qld), Schedule 1 s1.

^[26] 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.”

^[27] Powers of Attorney Act 2000 (Tas) s 30(2)(a) and (3).

^[28] Instruments Act 1958 (Vic) s 118. A footnote to s 118 is in the same terms as the footnote set out in (footnote 10).

^[29] [2008] VSC 574.

^[30] Ibid. s 125A.

^[31] Powers of Attorney Act 2006 (ACT), s 18.

^[32] Ibid. s 17.

^[33] Re Caldwell [1999] QSC 182. See also, Re MD [2005] QGAAT 29.

^[34] Collier, B and others, Mental Capacity: Powers of Attorney and Advanced Health Directives, Sydney, The Federation Press, 2005, 52.

^[35] Peisah C. Brodaty H, Quadrio C, “Family conflict in dementia: prodigal sons & black sheep” International Journal of Geriatric Psychiatry (2006) 21(5):485-492.

^[36] [1954] HCA 17 [7][1954] HCA 17; , (1954) 91 CLR 423, 438.

^[37] NSW (1988) Conv R 55-385.

^[38] [2008] VSC 574.

^[39] Ibid NSW (1988) Conv R 55-385

^[40] Powers of Attorney Act 2006 (ACT), s 18.

^[41] Instruments Act 1958 (Vic) s 118.

^[42] Powers of Attorney Act 2000 (Tas) s 30(2)(a) and (3).

^[43] Powers of Attorney Act 1998 (Qld), Schedule 1 s1.

^[44] Instruments Act 1958 (Vic) s 199(4).

^[45] Powers of Attorney Act 1998 (Qld) s 29(1), Powers of Attorney Act 2006 (ACT) s 14(1).

^[46] 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, Instruments Act 1958 (Vic) ss 119 and 123-125A, Guardianship and Administration Act 1990 (WA) s 104, Powers of Attorney Act 2006 (ACT) ss 19-22 and Powers of Attorney Act 1980 (NT) ss 13-14.

^[47] 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), Instruments Act 1958 (Vic) s 125B, Guardianship and Administration Act 1990 (WA) s 104(2)(b) , Powers of Attorney Act 2006 (ACT) s 23 and Powers of Attorney Act 1980 (NT) s 13(b).

^[48] Powers of Attorney Act 2006 (Tas) s 16.

^[49] The Margaret Mitchell (1858) 166 ER 1174.

^[50] Ibid. 1184. Also quoted in Dynayski v Grant [2004] NSWSC 1187, [19].

^[51] Watson v Watson [2002] NSWSC 919, [49] and Dynayski v Grant [2004] NSWSC 1187, [19].

^[52] (1983) 12 Aust Crim Rep 1, 14.

^[53] Watson v Watson [2002] NSWSC 919, [49].

^[54] Powell v Thompson [1991] 1 NZLR 597, 605.

^[55] 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.

^[56] Powers of Attorney Act 1998 (Qld) s 66.

^[57] Powers of Attorney and Agency Act 1984 (SA) s 7 and Guardianship and Administration Act 1990 (WA) ss 107(1)(a).

^[58] Powers of Attorney Act 2000 (Tas) s 32A(1).

^[59] Powers of Attorney Act 2003 (NSW) s 9 and Powers of Attorney Act 1998 (Qld) s 77.

^[60] Powers of Attorney Act 1998 (Qld) ss 67 and 77.

^[61] Powers of Attorney Act 2000 (Tas) s 30(1)(b) and (c).

^[62] Powers of Attorney and Agency Act 1984 (SA) Schedule 1.

^[63] Powers of Attorney Act 1998 (Qld) s 73 and Powers of Attorney Act 2006 (ACT) s 42. For examples of conflict transactions, see Re FAA [2008] QGAAT 3 and Re MV [2005] 46

^[64] Powers of Attorney Act 1998 (Qld) s 82 and 109A.

^[65] Powers of Attorney and Agency Act 1984 (SA) s 9.

^[66] Instruments Act 1958 (Vic) s 125M(2).

^[67] Guardianship and Administration Act 1990 (WA) ss 107(1)(c) and 109.

^[68] Powers of Attorney Act 2006 (ACT) s 53(2).

^[69] Powers of Attorney Act 1980 (NT) s 15(1).

^[70] For an example see, Re GMAV [2006] QGAAT 88

^[71] 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.

^[72] Powers of Attorney Act 2003 (NSW) ss 35 and 36.

^[73] Guardianship and Administration Act 1990 (WA) s 109.

^[74] Powers of Attorney Act 2000 (Tas) s 32A.

^[75] Powers of Attorney Act 1998 (Qld) s 69, Instruments Act 1958 (Vic) s 125E and Powers of Attorney Act 1980 (NT) s 10. As an example of such implication see, Powers of Attorney and Agency Act 1984 (SA) s 13.

^[76] Powers of Attorney Act 1998 (Qld) s 85; Instruments Act 1958 (Vic) s 125D; Powers of Attorney Act 2006 (ACT) s 47 and Guardianship and Administration Act 1990 (WA) ss 107(1)(b).

^[77] Powers of Attorney Act 1998 (Qld s 86 and Powers of Attorney Act 2006 (ACT) s 48.

^[78] Re RWM [2006] QGAAT 52.

^[79] Ibid. [34].

^[80] Ibid. [40].

^[81] Ibid. [42].

^[82] Powers of Attorney Act 2006 (ACT) s 45(2) and (3).

^[83] Powers of Attorney Act 1998 (Qld) s 81.

^[84] Ibid. s 74.

^[85] Powers of Attorney Act 2003 (NSW) s 11.

^[86] 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.

^[87] Powers of Attorney Act 1998 (Qld) s 88 and Powers of Attorney Act 2000 (Tas) s 31(3) and (4).

^[88] 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.

^[89] Powers of Attorney Act 2006 (ACT) ss 38 and 89.

^[90] Ibid. s 39(1) and (2)(a). 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.

^[91] Ibid. s 39(2)(a).

^[92] Ibid. s 39(2), (3) and (4).

^[93] Powers of Attorney Act 1980 (NT) s 6A as to the recognition in the Northern Territory enduring powers of attorney made interstate.

^[94] Bryant v La Banque du Peuple [1893] UKLawRpAC 5; [1893] AC 170, 177.

^[95] Tobin v Broadbent (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].

^[96] Powers of Attorney Act 2003 (NSW) ss 12 and 13.

^[97] Ibid. schedule 3, items 2 and 3,

^[98] Powers of Attorney Act 1998 (Qld) s 89.

^[99] Powers of Attorney Act 2000 (Tas) s 31(5).

^[100] Powers of Attorney Act 2006 (ACT) s 40.

^[101] Ibid. s 41.

^[102] 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).

^[103] 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).

^[104] Instruments Act 1958 (Vic) s 125Z(1)(b).

^[105] Powers of Attorney Act 2000 (Tas) ss 4, 9 and 30, Powers of Attorney Act 1980 (NT) s 13.

^[106] Powers of Attorney Act 2003 (NSW) s 25, Powers of Attorney Act 1998 (Qld) s 34, Powers of Attorney Act 2000 (Tas) s 42, Instruments Act 1958 (Vic) s 116, Guardianship and Administration Act 1990 (WA) s104A, Powers of Attorney Act 2000 (ACT) s 89 and Powers of Attorney Act 1980 (NT) s 6A(5).

^[107] Powers of Attorney Act 2000 (Tas) ss 4, 42, 43 and 47, Powers of Attorney Act 1980 (NT) ss 6A and 13. Section 7 of the Northern Territory Act allows for the registration in the Northern Territory of an enduring power of attorney made interstate regardless of when it was executed interstate. This does not countermand the requirement of registration enduring powers of attorney in the Northern Territory of powers of attorney to be used there wherever they were originally executed elsewhere in Australia or when. While an enduring power of attorney registered elsewhere in Australia may be taken to be registered in Tasmania, it is a safer practise to obtain registration of that power of attorney in Tasmania. It is normal practise for powers of attorney to be registered before they may be used to effect dealings in land. See Powers of Attorney Act 1980 (NT) s 8.

^[108] PG and KRL [2010] WASAT 30.

^[109] Protected Estates Act 1983 (NSW) s 75(5).

^[110] Powers of Attorney Act 2003 (NSW) s 37, Guardianship Act 1987 (NSW) s 25F(d).

^[111] Guardianship and Administration Act 2000 (Qld) s 22.

^[112] Ibid. s 23.

^[113] 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.

^[114] Guardianship and Administration Act 1995 (Tas) s 53.

^[115] Powers of Attorney Act 2000 (Tas) s 33.

^[116] Instruments Act 1958 (Vic) s 125G.

^[117] 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.

^[118] Guardianship and Management of Property Act 1991 (ACT) s 62(2)(c) and (4).

^[119] Powers of Attorney Act 1980 (NT) s 18. See also Aged and Infirm Person’s Property Act 1979 (NT).

^[120] 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..

^[121] Re DEM [2005] QGAAT 59.

^[122] Ibid. [103]-[105].

^[123] Ibid. [106] and Powers of Attorney Act 1998 (Qld) s 87.

^[124] Ibid. [107] and [137].

^[125] Szozda v Szozda [2010] NSWSC 804 [16] and [19].

^[126] Powers of Attorney Act 2003 (NSW) s 35(1).

^[127] Ibid. s 35(2) and (3).

^[128] For an example of a direction to lodge accounts and other records see, TKX [2009] NSWGT 6. 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.

^[129] Ibid. s 36(4).

^[130] Szozda v Szozda [2010] NSWSC 804 [41].

^[131] Ibid. s 36(5).

^[132] Ibid. s 36(6).

^[133] Powers of Attorney Act 2003 (NSW) s 37, Guardianship Act 1987 (NSW) s 25F(d).

^[134] Ibid. ss 36 and 38.

^[135] 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.

^[136] 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).

^[137] Ibid. 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).

^[138] Ibid. s 111. For examples see, Re CEJ [2005] QGAAT 30, Re MV [2005] QGAAT 46 and Re CAC [2008] QGAAT 45.

^[139] Ibid. s 113.

^[140] Ibid. s 113(3).

^[141] See for example, Re LCG [2003] QGAAT 15, Re DEM [2005] QGAAT 59 and Re RWM [2006] QGAAT 52.

^[142] Ibid. s 118(1). For examples see, Re CEJ [2005] QGAAT 30 and Re CAB [2007] QGAAT 23.

^[143] Ibid. s 118(2).

^[144] Ibid. s 122.

^[145] 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.

^[146] Powers of Attorney and Agency Act 1984 (SA) s 11.

^[147] Powers of Attorney Act 2000 (Tas) s 33(1).

^[148] Ibid. ss 39 and 40.

^[149] Ibid. 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.

^[150] Ibid. s 33(4).

^[151] Ibid. s 35.

^[152] Instruments Act 1958 (Vic) s 125V(1).

^[153] Ibid. s 125V(2).

^[154] Ibid. s 125W(2) and (3). In s 125W(3) the terms “administrator”, “guardian”, “nearest relative” and “primary carer” have the same meanings as they have in the Guardianship and Administration Act 1986 (Vic) – see s 125W(4).

^[155] Instruments Act 1958 (Vic) s125Z(1)(a).

^[156] Ibid. ss 125Q and 125X.

^[157] Ibid. s 125Y(1).

^[158] Ibid. s 125Y(2).

^[159] Ibid. s125ZA

^[160] Ibid. s 125Z.

^[161] Ibid. s 125ZB.

^[162] Guardianship and Administration Act 1990 (WA) s 109.

^[163] Ibid. s 3A.

^[164] KS [2008] WASAT 29 and EW [2010] WASAT 91.

^[165] Ibid. s 110.

^[166] 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.

^[167] Ibid. s 109(1).

^[168] Ibid. s 109(2).

^[169] For an example see, VM and Y [2006] WASAT 245, 44 SR (WA) 104.

^[170] Powers of Attorney Act 2006 (ACT) s 62(2) and (4).

^[171] Ibid. ss 80, 81, 83 and 84.

^[172] 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.

^[173] Guardianship and Management of Property Act 1991 (ACT) s 62(3) and Powers of Attorney Act 2006 (ACT) s 74.

^[174] Guardianship and Management of Property Act 1991 (ACT) s 65.

^[175] 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).

^[176] Guardianship and Management of Property Act 1991 (ACT) s 62(2).

^[177] Ibid s 62(4).

^[178] Ibid. s 66.

^[179] Ibid. s 84(2).

^[180] Ibid. s 84(3) and (4).

^[181] Powers of Attorney Act 1980 (NT) ss 11 and 15.

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Sydney University Press Law Books

O'Neill, Nick; Peisah, Carmelle --- "Chapter 10 - Enduring Powers of Attorney" [2011] SydUPLawBk 12; in O'Neill, Nick; Peisah, Carmelle (eds), "Capacity and the Law" (Sydney University Press, 2011)

Chapter 10 – Enduring Powers of Attorney 10. 1. Introduction