Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Acts5. The Principal Act is amended by adding at the end the following sections and Schedule:
“12. (1) Where—
(a) Part A of an instrument in the form of enduring power of attorney in the Schedule is completed, and signed, as indicated in the form;
(b) that signature is witnessed by 2 persons, neither of whom is the donee of the power or a relative of the donee or the donor;
(c) the donee signs Part D of the instrument to indicate acceptance; and
(d) the donee has attained the age of 18 years;
the instrument creates a power of attorney which is an enduring power of attorney.
“(2) An enduring power of attorney does not lapse by reason only of the incapacity of the donor.
“13. (1) The powers conferred on the donee by an enduring power of attorney may, if the instrument creating the power of attorney expressly provides, include the power—
(a) to make decisions and arrangements, subject to the instrument, on behalf of the donor in relation to the donor's day-to-day affairs other than those relating to the management of the donor's property and money; or
(b) to give consent, subject to the instrument, on behalf of the donor, to—
(i) medical treatment which is necessary for the well-being of the donor; or
(ii) the donation of a body part, blood or tissue of the donor to another person in accordance with the Transplantation and Anatomy Act 1978 .
“(2) Subsection (1) only applies—
(a) while the donor is incapacitated:
(b) in the case of the power referred to in paragraph (1) (a)—if the donor has signed Part B of the instrument;
(c) in the case of the power referred to in paragraph (1) (b)—if the donor has signed Part C of the instrument; and
(d) the relevant signature is witnessed by 2 persons, neither of whom is the donee of the power or a relative of the donee or the donor.
“14. (1) In exercising powers under an enduring power of attorney while the donor is incapacitated, the donee shall act, so far as possible, as the donor would have acted if the donor were not incapacitated.
“(2) In doing so, the donee shall take into account—
(a) the need to prevent the donor from becoming destitute; and
(b) the desirability of maintaining, so far as possible, the donor's style of life as it was before the incapacity.
“(3) Without affecting any other obligation imposed by law, in exercising powers under an enduring power of attorney—
(a) the donee shall not, unless the power of attorney expressly authorises it, enter into a transaction if the donee's interests and duty in relation to the transaction could conflict with the donor's interests and duty in relation to the transaction;
(b) the donee shall keep the donee's property and money separate from the donor's; and
(c) the donee shall keep proper accounts.
“(4) The obligation of a donee under an enduring power of attorney to keep the donee's property and money separate from the donor's property and money does not apply in relation to property and money owned jointly by the donor and donee.
“15. (1) The Public Trustee or, with the leave of the Court of competent jurisdiction, some other person, may commence and maintain a proceeding in that Court in the name and for the benefit of the donor of an enduring power of attorney for relief against the donee (including the payment of compensation) because of a breach of the donee's duty as attorney occurring while the donor was incapacitated.
“(2) Subsection (1) does not affect a right of a person to commence and maintain a proceeding.
“(3) If the Court gives judgment for the donor, it shall make such order as is just with respect to the payment of any money ordered to be paid.
“(4) The Court shall excuse a donee's breach of obligation if—
(a) the breach was due to an honest mistake; and
(b) the donee ought fairly to be excused.
“16. The Public Trustee may, by writing given to the donee under an enduring power of attorney, require the donee to produce to the Public Trustee specified books, accounts or other records of transactions carried out by the donee for the donor pursuant to the power.
“17. (1) On application by the Public Trustee or, with leave of the Court, some other person, the Court may, by order—
(a) give a direction, not inconsistent with this Act or the power of attorney, that the donee under an enduring power of attorney do or refrain from doing a specified act;
(b) direct the donee under an enduring power of attorney to produce specified books, accounts or other records of transactions carried out by the donee for the donor;
(c) terminate an enduring power of attorney; or
(d) make a declaration as to the interpretation or effect of an enduring power of attorney.
“(2) If the Court terminates an enduring power of attorney, or if the donee under such a power resigns or dies, on application by the Public Trustee the Court may, by order, appoint—
(a) the Public Trustee to be the guardian of the donor; or
(b) the Public Trustee or a trustee company nominated by the Public Trustee, but not both, to be the manager of the donor's property;
for a specified time and with specified powers.
“ SCHEDULE Section 12
ENDURING POWER OF ATTORNEY
IMPORTANT NOTICES
TO THE PERSON GIVING THIS POWER OF ATTORNEY:
This document will allow your chosen attorney (who must be over 18) to make decisions and do things for you.
If you become unable to manage your affairs, your attorney will be able to make decisions which you cannot supervise or control. For example, the attorney could, in that event, sell your home if he or she thought it was what you would have done yourself, or if he or she thought it was necessary to stop you going bankrupt.
You can, however, specify limits to your attorney's power by setting them out in the document.
To create an enduring power of attorney, you must sign where indicated at the end of PART A, and that signature must be witnessed.
You may wish to give your attorney some additional powers to take care of your personal affairs while you are unable to manage them. If so, you should sign PART B. That signature must be witnessed.
You may also wish to give your attorney the power to consent to medical treatment, or to medical donations, on your behalf while you are incapacitated. If so, you should sign PART C. That signature, too, must be witnessed.
In addition, the document must be signed by your attorney where indicated at the end of PART D.
Finally, before signing any Part of this document, you should carefully read each paragraph and any explanatory notes which follow.
WHERE TO SEEK ADVICE:
The Public Trustee, or a solicitor, can advise you about this enduring power of attorney or about the attorney's responsibilities under such powers.
1. I, [print your full name here]
of [print your address here]
appoint [print your attorney's full name
here] of
[ print your attorney's address here ] to be my attorney.
2. I authorise my attorney to do on my behalf anything that I can lawfully do by an attorney.
[ By this paragraph, your attorney is given the power to take care of all of your property and financial affairs (subject to paragraph 4). ]
3. In addition to any other rights or powers my attorney may have under paragraph 2, my attorney may do the following things in relation to my property or financial affairs:
[ Set out here anything that you particularly wish your attorney to be able to do with your property or money, for example “My attorney may use the following assets of mine for his/her own personal use:
(list the assets) ” .
If you do not wish to specify anything here, cross out paragraph 3 .]
4. My attorney shall only exercise powers under paragraphs 2 and 3 subject to the following limits:
[ Set out here any limits to be placed on the attorney's powers, for example “The attorney shall not sell my shares in XYZ Company Pty. Ltd .”
If you do not wish to specify any limits here, cross out paragraph 4 . ]
5. This is an enduring power of attorney.