ACT introduces Powers of Attorney Bill

The ACT Powers of Attorney Bill 2006 revises the powers of attorney regime in the Australian Capital Territory.

It implements the outcome of a review of substituted decision-making consequent upon the Government’s agreement to the recommendations made by the Standing Committee on Health and Community Care in its report of 2001 following the inquiry into “Elder Abuse in the ACT”.

The Bill provides enhanced safeguards for making a power of attorney and strengthens the witnessing requirement for the understanding capacity of a person making the power of attorney.

In relation to enduring powers of attorney, the Bill provides for the Guardianship and Management of Property Tribunal (guardianship tribunal) to have a supervisory jurisdiction where the principal has become a person with impaired decision-making capacity, and for enhanced obligations on attorneys.

The Bill also explicitly provides for matters that have previously been taken to be governed by common law, such as the operation of joint attorneys and ending of a power of attorney.

Safeguards are provided in the Bill to relieve an innocent attorney from personal liability and to protect a transaction an innocent third party has entered into with an attorney under an invalid power of attorney.

The Bill requires that an attorney of a principal who has impaired decision-making capacity should comply with general principles provided in the Bill which enshrine the rights of the principal.

These principles include the right to participate in decision-making, the right to participation in community life, the right to human worth and dignity and the right to access family members and relatives.

The Bill also provides for the Minister to approve forms of powers of attorney.