Powers of Attorney Amendment Act 2016

Authorised by the Chief Parliamentary Counsel Authorised Version i Powers of Attorney Amendment Act 2016 No. 64 of 2016 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 3 Principal Act 2 Part 2—Amendments relating to powers of attorney 3 Division 1—Amendment of Powers of Attorney Act 2014 3 4 Enduring power of attorney 3 5 Appointment of alternative attorneys 3 6 Later inconsistent enduring power of attorney 4 7 Resignation when principal has decision making capacity 4 8 Ending of attorney's power where more than one attorney 4 9 Duties of attorney 4 10 Information power 4 11 Appointment of alternative supportive attorneys 5 12 Who is entitled to notice? 5 13 Who can apply for a rehearing? 5 14 Heading to Part 10 substituted 6 15 Division 3 of Part 10 substituted 6 Division 2—Amendment of Privacy and Data Protection Act 2014 8 16 Capacity to consent or make a request or exercise right of access 8 Part 3—Repeal of amending Act 9 17 Repeal of amending Act 9 ═══════════════ Endnotes 10 1 General information 10 -- 1 of 11 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Powers of Attorney Amendment Act 2016 † No. 64 of 2016 [Assented to 15 November 2016] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The main purposes of this Act are— (a) to amend the Powers of Attorney Act 2014— (i) to further provide for the making of an enduring power of attorney; and Victoria -- 2 of 11 -- Part 1—Preliminary Powers of Attorney Amendment Act 2016 No. 64 of 2016 2 Authorised by the Chief Parliamentary Counsel (ii) to further provide for the appointment of alternative attorneys and alternative supportive attorneys; and (iii) to further provide for the revocation of an enduring power of attorney; and (iv) to further provide for the ending of an attorney's power and the operation of an enduring power of attorney; and (v) to provide for other minor and related matters; and (b) to make a minor amendment to the Privacy and Data Protection Act 2014. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 May 2017, it comes into operation on that day. 3 Principal Act In this Act, the Powers of Attorney Act 2014 is called the Principal Act. -- 3 of 11 -- Part 2—Amendments relating to powers of attorney Powers of Attorney Amendment Act 2016 No. 64 of 2016 3 Authorised by the Chief Parliamentary Counsel Part 2—Amendments relating to powers of attorney Division 1—Amendment of Powers of Attorney Act 2014 4 Enduring power of attorney For section 22(2) of the Principal Act substitute— "(2) Without limiting subsection (1), a person may confine what is authorised to be done by an attorney— (a) to personal matters only; or (b) to financial matters only; or (c) to matters specified in the instrument of appointment.". 5 Appointment of alternative attorneys For section 31(1) of the Principal Act substitute— "(1) Subject to subsection (1A), a principal under an enduring power of attorney may appoint— (a) one or more persons as alternative attorneys for an attorney appointed under the power of attorney; or (b) a person as an alternative attorney in respect of more than one attorney appointed under the power of attorney. (1A) A principal must not appoint a person under subsection (1) unless the person is eligible to be appointed as an attorney under section 28.". -- 4 of 11 -- Part 2—Amendments relating to powers of attorney Powers of Attorney Amendment Act 2016 No. 64 of 2016 4 Authorised by the Chief Parliamentary Counsel 6 Later inconsistent enduring power of attorney (1) In the heading to section 55 of the Principal Act, for "Later inconsistent" substitute "Revocation by later". (2) In section 55(1) of the Principal Act omit ", so far as the later enduring power of attorney is inconsistent". 7 Resignation when principal has decision making capacity In section 56(2) of the Principal Act, for "is it gives power to the attorney or alternative attorney" substitute "as it gives power to the attorney or alternative attorney for that matter". 8 Ending of attorney's power where more than one attorney (1) After section 62(3) of the Principal Act insert— "(3A) Despite subsection (3), if the ending of any power of a majority attorney under an enduring power of attorney results in the remaining majority attorneys being no longer able to exercise that power as majority attorneys, then the remaining attorneys must exercise that power jointly.". (2) In section 62(4) of the Principal Act, for "or (3)" substitute ", (3) or (3A)". 9 Duties of attorney In section 63(1)(d) of the Principal Act, for "power so authorises" substitute "attorney is authorised by the power, the principal or VCAT". 10 Information power In the note at the foot of section 87(2) of the Principal Act, for "the Information Privacy Act 2000" substitute "the Privacy and Data Protection Act 2014". -- 5 of 11 -- Part 2—Amendments relating to powers of attorney Powers of Attorney Amendment Act 2016 No. 64 of 2016 5 Authorised by the Chief Parliamentary Counsel 11 Appointment of alternative supportive attorneys For section 93(1) of the Principal Act substitute— "(1) Subject to subsection (1A), a principal under a supportive attorney appointment may appoint— (a) one or more persons as alternative supportive attorneys for a supportive attorney appointed under the appointment; or (b) a person as an alternative supportive attorney in respect of more than one supportive attorney appointed under the appointment. (1A) A principal must not appoint a person under subsection (1) unless the person is eligible to be appointed as a supportive attorney under section 91.". 12 Who is entitled to notice? In section 123(4) of the Principal Act, for "the the" substitute "the". 13 Who can apply for a rehearing? (1) For section 130(1)(b) of the Principal Act substitute— "(b) if the person was given notice of the hearing of the application at first instance but was not a party to the hearing of the application, with the leave of VCAT; or (c) if the person was not given notice of the hearing of the application at first instance and the person has a special interest in the affairs of the principal, with the leave of VCAT; or -- 6 of 11 -- Part 2—Amendments relating to powers of attorney Powers of Attorney Amendment Act 2016 No. 64 of 2016 6 Authorised by the Chief Parliamentary Counsel (d) if the person is the Public Advocate, without the leave of VCAT.". (2) Section 130(2) of the Principal Act is repealed. 14 Heading to Part 10 substituted For the heading to Part 10 of the Principal Act substitute— "Part 10—Savings and transitional provisions". 15 Division 3 of Part 10 substituted For Division 3 of Part 10 of the Principal Act substitute— "Division 3—Powers of Attorney Amendment Act 2016 149 Definition In this Division, enduring power of attorney (2014) means a power of attorney made under section 22 as in force immediately before the commencement of section 4 of the Powers of Attorney Amendment Act 2016. 150 Interpretation of Legislation Act 1984 not limited Nothing in this Division limits the operation of the Interpretation of Legislation Act 1984. 151 Enduring power of attorney (2014) (1) Despite the commencement of section 4 of the Powers of Attorney Amendment Act 2016, an enduring power of attorney (2014) continues in existence for so long as that power of attorney is in force on and after that commencement. -- 7 of 11 -- Part 2—Amendments relating to powers of attorney Powers of Attorney Amendment Act 2016 No. 64 of 2016 7 Authorised by the Chief Parliamentary Counsel (2) On and from the commencement of section 6 of the Powers of Attorney Amendment Act 2016, section 55 as amended by section 6 of that Act applies to an enduring power of attorney (2014). (3) Despite the commencement of section 8 of the Powers of Attorney Amendment Act 2016, section 62 of this Act as in force immediately before the commencement of section 8 continues to apply to an enduring power of attorney (2014). 152 Old enduring power of attorney Despite section 142(2), on and from the commencement of section 6 of the Powers of Attorney Amendment Act 2016— (a) Divisions 1 and 2 of Part 5 apply to an old enduring power of attorney that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act; and (b) Division 3 of Part 5 as amended by section 6 applies to an old enduring power of attorney that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act. 153 Old enduring power of guardianship Despite section 143(2), on and from the commencement of section 6 of the Powers of Attorney Amendment Act 2016— (a) Divisions 1 and 2 of Part 5 apply to an old enduring power of guardianship that is in force immediately before that commencement as if it were an -- 8 of 11 -- Part 2—Amendments relating to powers of attorney Powers of Attorney Amendment Act 2016 No. 64 of 2016 8 Authorised by the Chief Parliamentary Counsel enduring power of attorney made under this Act; and (b) Division 3 of Part 5 as amended by section 6 of that Act applies to an old enduring power of guardianship that is in force immediately before that commencement as if it were an enduring power of attorney made under this Act. 154 Applications for VCAT rehearing Section 130 as amended by section 13 of the Powers of Attorney Amendment Act 2016 applies to an application made under section 130 that has been made but not determined immediately before that amendment.". Division 2—Amendment of Privacy and Data Protection Act 2014 16 Capacity to consent or make a request or exercise right of access For section 28(2)(a) of the Privacy and Data Protection Act 2014 substitute— "(a) by— (i) the individual personally, except if the individual is a child who is incapable of making the request; or (ii) a supportive attorney acting under a supportive attorney appointment, within the meaning of the Powers of Attorney Act 2014; and". -- 9 of 11 -- Part 3—Repeal of amending Act Powers of Attorney Amendment Act 2016 No. 64 of 2016 9 Authorised by the Chief Parliamentary Counsel Part 3—Repeal of amending Act 17 Repeal of amending Act This Act is repealed on 1 May 2018. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ -- 10 of 11 -- Endnotes Powers of Attorney Amendment Act 2016 No. 64 of 2016 10 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 8 June 2016 Legislative Council: 1 September 2016 The long title for the Bill for this Act was "A Bill for an Act to amend the Powers of Attorney Act 2014 and the Privacy and Data Protection Act 2014 and for other purposes." -- 11 of 11 --