Download Powers of Attorney Act 1998 PDF

TitlePowers of Attorney Act 1998
LanguageEnglish
File Size933.4 KB
Total Pages106
Table of Contents
                            Contents
	Chapter 1 Preliminary
		1 Short title
		2 Commencement
		3 Dictionary
		4 Act binds all persons
		5 General overview
		6 Scope of Act
		6A Relationship with Guardianship and Administration Act 2000
		6B Relationship with Public Guardian Act 2014
	Chapter 2 Powers of attorney other than enduring powers of attorney
		Part 1 Introduction
			7 Application of ch 2
			8 Powers of attorney
			9 When attorney’s power exercisable
			10 Powers of attorney given as security
		Part 2 Making a power of attorney other than an enduring power of attorney
			11 Form of general power of attorney made under Act
			12 Execution of powers of attorney
			13 Appointment of 1 or more attorneys
			14 Proof of power of attorney
		Part 3 Revoking a power of attorney other than an enduring power of attorney
			Division 1 Introduction
				15 Relationship with other law
			Division 2 Revocation by principal
				16 Advice of revocation
				17 Written revocation
				18 Impaired capacity
				19 Death
			Division 3 Revocation according to terms
				20 According to terms
			Division 4 Revocation by attorney
				21 Resignation
				22 Impaired capacity
				23 Bankruptcy or insolvency
				24 Death
		Part 4 Other provisions
			25 Registration of powers of attorney and instruments revoking powers
			26 Offence to dishonestly induce the making or revocation of power of attorney
	Chapter 3 Enduring documents
		Part 1 Application and interpretation
			27 Application of ch 3
			28 Meaning of enduring document
			29 Meaning of eligible attorney
			30 Meaning of eligible signer
			31 Meaning of eligible witness
		Part 2 Enduring power of attorney provisions
			32 Enduring powers of attorney
			33 When attorney’s power exercisable
			34 Recognition of enduring power of attorney made in other States
		Part 3 Advance health directive provisions
			35 Advance health directives
			36 Operation of advance health directive
			37 Act does not authorise euthanasia or affect particular provisions of Criminal Code
			37A Act’s relationship with Forensic Disability Act
			38 Act’s relationship with Mental Health Act
			39 Common law not affected
			40 Recognition of enduring health care document made in other States
		Part 4 Making an enduring document
			41 Principal’s capacity to make an enduring power of attorney
			42 Principal’s capacity to make an advance health directive
			43 Appointment of 1 or more eligible attorneys
			44 Formal requirements
			45 Proof of enduring document
		Part 5 Revoking an enduring document
			Division 1 Revocation by principal
				46 Advice of revocation
				47 Principal’s capacity for written revocation of power of attorney
				48 Principal’s capacity for written revocation of advance health directive
				49 Formal requirements for written revocation of enduring document
				50 Later enduring document
				51 Death
				52 Marriage
				52A Civil partnership
				53 Divorce
				53A Termination of civil partnership
			Division 2 Revocation according to terms
				54 According to terms
			Division 3 Revocation by attorney
				55 Resignation
				56 Impaired capacity
				57 Bankruptcy or insolvency
				58 Death
				59 Paid carer or health provider
				59AA Service provider
				59A Effect of power ending
		Part 6 Other provisions
			60 Registration of powers of attorney and instruments revoking powers
			61 Offence to dishonestly induce the making or revocation of enduring document
	Chapter 4 Statutory health attorneys
		62 Statutory health attorney
		63 Who is the statutory health attorney
	Chapter 5 Exercising power for a principal
		Part 1 Provisions applying to attorneys
			65 Application of pt 1
			66 Act honestly and with reasonable diligence
			67 Subject to terms of document
			69 Execution of instrument etc.
			70 Subject to guardian or administrator
			71 Not exercise revoked power
			72 Resignation of attorney
			73 Avoid conflict transaction
			74 Protected use of confidential information
			74A Prohibited use of confidential information
		Part 2 Provisions applying to attorneys under enduring documents and statutory health attorneys
			75 Application of pt 2
			76 General principles for adults with impaired capacity
			77 Attorney has maximum power if not otherwise stated
			78 Multiple attorneys are joint if not otherwise stated
			79 Consult with principal’s other appointees or attorneys
			80 Act together with joint attorneys
			81 Right of attorney to information
			82 Resignation of attorney while principal has impaired capacity
		Part 3 Provisions about financial matters
			83 Application
			84 Power to invest
			85 Keep records
			86 Keep property separate
			87 Presumption of undue influence
			88 Gifts
			89 Maintain principal’s dependants
		Part 5 Protection and relief from liability
			96 Interpretation
			97 Protection if court advice, directions or recommendations
			98 Protection for attorney if unaware of invalidity
			99 Protection for person dealing with attorney and next person if unaware of invalidity
			100 Additional protection if unaware of invalidity in health context
			101 No less protection than if adult gave health consent
			102 Protection of health provider unaware of advance health directive
			103 Protection of health provider for non-compliance with advance health directive
			104 Protection for person carrying out forensic examination with consent
			105 Relief from personal liability
		Part 6 Compensation
			106 Compensation for failure to comply
			107 Power to apply to court for compensation for loss of benefit in estate
	Chapter 6 Supreme Court
		Part 1 General
			108 Powers extend to powers of attorney made otherwise than under this Act
			109 Inherent jurisdiction and litigation guardian process not affected
			109A Queensland Civil and Administrative Tribunal also has jurisdiction and powers about enduring documents
		Part 2 Court’s powers
			110 Application and participation
			111 Determination of capacity
			112 Effect of declaration about capacity to enter contract
			113 Declaration about validity
			114 Effect of invalidity
			115 Declaration about commencement of power
			116 Order removing attorney or changing or revoking document
			117 Changed circumstances as basis for change or revocation
			118 Advice, directions and recommendations etc.
			120 Court may proceed without all relevant material
			121 Report by public guardian or public trustee
			122 Records and audit
			123 Court may dismiss frivolous etc. applications
			124 Written reasons for decision
			125 Costs
	Chapter 8 Other
		161 Chief executive may approve forms
		162 Regulation-making power
	Chapter 9 Transitional provisions
		Part 1 Transitional provision for Act No. 22 of 1998
			163 Powers of attorney under Property Law Act 1974
		Part 2 Transitional provision for Guardianship and Administration Act 2000
			164 Subject to committee or manager
		Part 3 Transitional provisions for Guardianship and Administration and Other Acts Amendment Act 2001
			165 References to special life-sustaining measures
			166 Power for health matters excludes power for withholding or withdrawal of life-sustaining measure
	Schedule 1 Principles
		Part 1 General principles
			1 Presumption of capacity
			2 Same human rights
			3 Individual value
			4 Valued role as member of society
			5 Participation in community life
			6 Encouragement of self-reliance
			7 Maximum participation, minimal limitations and substituted judgment
			8 Maintenance of existing supportive relationships
			9 Maintenance of environment and values
			10 Appropriate to circumstances
			11 Confidentiality
		Part 2 Health care principle
			12 Health care principle
	Schedule 2 Types of matters
		Part 1 Financial matter
			1 Financial matter
		Part 2 Personal matter
			2 Personal matter
			3 Special personal matter
			4 Health matter
			5 Health care
			5A Life-sustaining measure
			5B Good medical practice
			6 Special health matter
			7 Special health care
			8 Removal of tissue for donation
			9 Sterilisation
			10 Termination
			11 Primary reason for treatment
			12 Special medical research or experimental health care
			13 Approved clinical research
			14 Electroconvulsive therapy
			15 Psychosurgery
			17 Prescribed special health care
		Part 3 Legal matter
			18 Legal matter
	Schedule 3 Dictionary
                        
Document Text Contents
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Queensland

Powers of Attorney Act 1998

Current as at 22 March 2016

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[s 74A]

Powers of Attorney Act 1998
Chapter 5 Exercising power for a principal
(a) information within the public domain unless further
disclosure of the information is prohibited by law; or

(b) statistical or other information that could not reasonably
be expected to result in the identification of the person
to whom the information relates; or

(c) information about a guardianship proceeding.

guardianship proceeding see Guardianship and
Administration Act 2000, schedule 4.

use, confidential information, includes disclose or publish.

74A Prohibited use of confidential information

(1) An attorney, including a statutory health attorney, must not
use confidential information gained because of being an
attorney, or because of an opportunity given by being an
attorney, other than as provided under section 74, unless the
person has a reasonable excuse.

Maximum penalty—200 penalty units.

(2) In this section—

confidential information see section 74.

use, confidential information, see section 74.

Part 2 Provisions applying to
attorneys under enduring
documents and statutory
health attorneys

75 Application of pt 2

Except where otherwise provided, this part applies to—

(a) an attorney under an enduring document; and
Current as at 22 March 2016 Page 51

Authorised by the Parliamentary Counsel

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[s 76]

Powers of Attorney Act 1998
Chapter 5 Exercising power for a principal
(b) a statutory health attorney.

76 General principles for adults with impaired capacity

The principles set out in schedule 1 (the general principles
and, for a health matter, the health care principle) must be
complied with by a person or other entity who performs a
function or exercises a power under this Act, or an enduring
document, for a matter in relation to an adult who has
impaired capacity.
Example—

If a principal of an enduring power of attorney or advance health
directive has impaired capacity for a matter, an attorney who may
exercise power for the matter must—

(a) comply with the general principles; and

(b) if the matter is a health matter, also comply with the health care
principle.

Note—

function includes duty—see the Acts Interpretation Act 1954,
schedule 1.

power includes authority—see the Acts Interpretation Act 1954,
schedule 1.

77 Attorney has maximum power if not otherwise stated

To the extent an enduring document does not state otherwise,
an attorney is taken to have the maximum power that could be
given to the attorney by the enduring document.
Example—

If an adult’s enduring power of attorney merely states that ‘I appoint
[full name] as my attorney’, the appointee is taken to have power for all
financial matters and all personal matters for the adult.

78 Multiple attorneys are joint if not otherwise stated

Two or more attorneys for a matter are appointed as joint
attorneys for the matter if the enduring document does not
state how they are to share the power given to them.
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Authorised by the Parliamentary Counsel

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Endnotes

Powers of Attorney Act 1998
s 13 ins 2000 No. 8 s 263 sch 3
amd 2003 No. 87 s 60

Electroconvulsive therapy
s 14 ins 2000 No. 8 s 263 sch 3

Psychosurgery
s 15 ins 2000 No. 8 s 263 sch 3

Special life-sustaining measures
s 16 ins 2000 No. 8 s 263 sch 3
om 2001 No. 95 s 32

Prescribed special health care
s 17 ins 2000 No. 8 s 263 sch 3

PART 3—LEGAL MATTER
pt hdg ins 2000 No. 8 s 263 sch 3

Legal matter
s 18 ins 2000 No. 8 s 263 sch 3

SCHEDULE 3—DICTIONARY
def administrator ins 2000 No. 8 s 263 sch 3
def adult guardian sub 2000 No. 8 s 263 sch 3
om 2014 No. 26 s 272(1)
def approved clinical research ins 2000 No. 8 s 263 sch 3
def capacity sub 2000 No. 8 s 263 sch 3
def clinical research ins 2000 No. 8 s 263 sch 3
def de facto spouse om 2002 No. 74 s 90 sch
def electroconvulsive therapy ins 2000 No. 8 s 263 sch 3
def forensic examination ins 2003 No. 87 s 61
def good medical practice ins 2001 No. 95 s 33(2)
def guardian ins 2000 No. 8 s 263 sch 3
def insolvent amd 2001 No. 45 s 29 sch 3
def interested person sub 2000 No. 8 s 263 sch 3
def legal matter ins 2000 No. 8 s 263 sch 3
def life-sustaining measure ins 2001 No. 95 s 33(2)
def life-sustaining measures om 2000 No. 8 s 263 sch 3
def matter amd 2000 No. 8 s 263 sch 3
def paid carer amd 2011 No. 45 s 217 sch 1A
def prescribed health care ins 2000 No. 8 s 263 sch 3
def psychosurgery ins 2000 No. 8 s 263 sch 3
def public guardian ins 2014 No. 26 s 272(2)
def resident ins 2004 No. 43 s 94
def residential service ins 2004 No. 43 s 94
def service provider ins 2004 No. 43 s 94
def special life-sustaining measures ins 2000 No. 8 s 263 sch 3
om 2001 No. 95 s 33(1)
def special medical research or experimental health care ins 2000 No. 8 s 263 sch 3
def spouse om 2002 No. 74 s 90 sch
Current as at 22 March 2016 Page 103

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Endnotes

Powers of Attorney Act 1998
def tribunal ins 2000 No. 8 s 263 sch 3
sub 2009 No. 24 s 1570

© State of Queensland 2016
Page 104 Current as at 22 March 2016

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