In brief - Disputes to be referred to Guardianship Tribunal instead of Supreme Court
New forms are to replace the current prescribed form, one or more substitute attorneys may be appointed and the Guardianship Tribunal will have the jurisdiction to determine disputes related to the revocation of a power of attorney.
Amendments to Powers of Attorney Act 2003 passed in May 2013
On 1 May 2013 the NSW parliament passed the Powers of Attorney Amendment Bill 2013. The purpose of this bill is to make amendments to the Powers of Attorney Act 2003 (Act).
Some of the more substantial changes are detailed below.
Current prescribed form for power of attorney to be replaced
The prescribed form for a power of attorney will be removed from the Act and relocated in the Schedule of the Regulations. Two forms will replace the current prescribed form: one form dealing with general power of attorney and the other dealing with an enduring power of attorney. The forms themselves will include more guidance for the attorneys on their roles and duties as an attorney and be easier to read, contain more useful information and have more options than the old form.
Principal to have right to appoint substitute attorneys
Previously, there was some question as to whether the appointment of a substitute attorney in a power of attorney was effective. The amendments to the Act (section 45A) state that a principal has the right to appoint one or more substitute attorneys in a power of attorney.
This amendment will not affect the validity of an appointment of a substitute attorney before these amendments.
Change in arrangements related to joint attorneys
Currently, section 46 of the Act states that where a power of attorney appoints two or more persons to act as attorney (either jointly or severally), where the office of one of those positions is vacated for any reason, the power of attorney is terminated.
The addition of section 46(1) will give the principal the right to specify otherwise in the power of attorney itself. This will mean that the power of attorney may continue to be effective if the principal elects this in the power of attorney.
The amendments to section 46 do not apply to any power of attorney that has been executed before the date of these amendments.
Guardianship Tribunal to have jurisdiction to determine disputes
Currently, disputes relating to the revocation of a power of attorney would ordinarily be referred to the Supreme Court.
Following the amendments to the Act, the Guardianship Tribunal will have the jurisdiction to determine disputes of this kind, resulting in less delay and expense for the parties involved.
How long can you keep using the old power of attorney form?
It is expected that the new powers of attorney prescribed forms for the Powers of Attorney Regulation will be available shortly and will commence operation on 13 September 2013. It is proposed to allow the current prescribed form to be used up until 1 March 2014. It is expected that any power of attorney using the old prescribed form, provided it is executed before the changeover date, should still be able to be registered after the changeover date until 1 March 2014. It is expected that Land and Property information will refuse to register an enduring power of attorney created after 1 March 2014 on the old prescribed form.
We will need to examine the transitional provisions and the new powers of attorney regulations carefully when they issue to ascertain on what date you should cease using the old prescribed form, to ensure that such an old form can still be registered after the changeover date.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.