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Powers of Attorney Act 1959 (NI)

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Act No. 2 of 1959
Other document - Other as made
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure, Transport, Cities and Regional Development
Registered 09 Dec 2015

 

NORFOLK                            ISLAND

 

 

POWERS OF ATTORNEY ACT 1959

 

[Consolidated as at 4 May 2004

on the authority of the Administrator

and in accordance with

the Enactments Reprinting Act 1980]

(Re-issued 18 March to correct a cross reference)

________

 

TABLE OF PROVISIONS

 

         1.      Short title

         2.      Interpretation

         3.      Application of Act

         4.      Execution under power of attorney

         5.      Power of attorney to continue in force until death or revocation

         6.      Irrevocable power of attorney for value

         7.      Power of attorney irrevocable for fixed period

         8.      Protection of purchaser under irrevocable power of attorney

         9.      Registration of powers of attorney

       10.      Certain powers of attorney deemed to be registered

       11.      Effect of registration of powers of attorney

       12.      Searches

13.      Accounts

14.      Enduring powers of attorney

15.      Power of Supreme Court in relation to enduring powers of attorney

Schedule 1

                  Schedule 2

 


 

NORFOLK                            ISLAND

 

 

Powers of Attorney Act 1959

_______________________________________________________________________

 

An Act relating to Powers of Attorney

Short title

      1.         This Act may be cited as the Powers of Attorney Act 1959.

Interpretation

      2.         (1)        In this Act, unless the contrary intention appears —

“agent” means a person appointed to make decisions for a donor in respect of medical treatment;”;

“attorney” includes joint attorneys, joint and several attorneys and a sub-attorney;

“bankruptcy” includes an act or proceeding in law having effects or results similar to the effect or result of bankruptcy and, in relation to a body corporate, includes the winding up of the body corporate;

“donee”, in relation to a power of attorney, means the person who is appointed to be the attorney of another person by virtue of the power of attorney;

“donor”, in relation to a power of attorney, means the person who, by the power of attorney, appoints another person to be his attorney;

“enduring power of attorney” means a power created by an instrument referred to in section 14;

“legal incapacity,” in relation to a person, means a state of mental or physical incapacity that renders the person incapable of managing his or her affairs;


“medical treatment” means the carrying out of  —

(a)        an operation; or

(b)        the administration of a drug or other like substance; or

(c)        any other medical procedure,

but does not include palliative care;

“near relative” means spouse, de facto spouse, child, parent, grandparent, and sibling;

“palliative care” includes  —

(a)        the provision of reasonable medical procedures for the relief of pain, suffering and discomfort; or

(b)               the reasonable provision of food and water;

“power of attorney” includes an authorised substitution of attorney and an authorised delegation to, or appointment of, sub-attorney;

“registered” means registered in accordance with section 9;

“the Registrar” means the Registrar of Lands appointed under the Conveyancing Act 1913 and, in the event of the suspension or absence through illness or otherwise of the Registrar of Lands so appointed, includes the deputy Registrar of Lands appointed under that Act.

                  (2)        This Act does not enable a donee under a power of attorney to appoint irrevocably a substitute, delegate or sub-attorney unless expressly authorised to do so.

Application of Act

      3.         This Act applies to all powers of attorney, including powers of attorney authorising, whether expressly or in general terms, the execution of instruments under the Conveyancing Act 1913 and the Land Titles Act 1996.

Execution under power of attorney

      4.         (1)        Where the donee under a power of attorney is entitled to execute an assurance or instrument or do any other thing by authority of the donor of the power of attorney, the donee may execute such an assurance or instrument or do such a thing in his own name, with his own signature, and, if sealing is required, under his own seal.

                  (2)        An assurance or instrument so executed and any thing so done is as effectual in law —

(a)        where it has been executed or done under seal - as if it had  been executed or done in the name, with the signature and under the seal, of the donor of the power of attorney; and

(b)        where it has not been executed or done under seal - as if it had been executed or done in the name, and with the signature, of the donor of the power of attorney.

                  (3)        This section applies to a power of attorney created by instruments executed either before or after the commencement of this Act.

Power of attorney to continue in force until death or revocation

      5.         (1)        Subject to any provision to the contrary in the instrument creating a power of attorney, the power of attorney operates and continues in force, so far as an act or thing done or suffered under it in good faith is concerned, until notice of the death of the donor of the power of attorney, or notice of some other revocation of the power of attorney, is received by the donee under the power of attorney.

                  (2)        An act or thing within the scope of a power of attorney done or suffered by the donee under the power of attorney in good faith after the death of the donor of the power of attorney or after the power of attorney has been otherwise revoked, but before notice of the death of the donor or of the other revocation of the power of attorney is received by the donee, is in every respect as effectual in law as if the donor had not died or the power of attorney had not been otherwise revoked.

                  (3)        Where at the time at which, or at any time after, the donee under a power of attorney does or suffers any act or thing under the power of attorney, the donee makes a statutory declaration stating —

(a)        that he is the attorney named in the power of attorney by virtue of which he has done or suffered the act or thing; and

(b)        that, at the time when he did or suffered the act or thing, he had not received notice of the revocation of the power of attorney by the death, lunacy, unsoundness of mind, bankruptcy, act of the donor of the power of attorney or otherwise,

the statutory declaration is, in favour of a person dealing with the donee in good faith, for valuable consideration and without notice of the death of the donor or of any other revocation of the power of attorney, conclusive that the power of attorney had not been revoked at the time when the act or thing was so done or suffered.

                  (4)        Where a donee under a power of attorney is a body corporate —

(a)        the statutory declaration may be made by an officer of the body corporate appointed for the purpose by the board of directors, council or other governing body of the body corporate either generally or in a particular instance; and

(b)        if the statutory declaration contains, in addition to the matters specified in subsection 5(3), a statement that the declarant is an officer of the body corporate appointed for the purpose of making the declaration, the statutory declaration is, in favour of a person dealing with the donee in good faith, for valuable consideration and without notice that the declarant is not an officer of the body corporate duly appointed for the purpose of making the declaration, conclusive that the declarant is such an officer.

                  (5)        Where an instrument that is made, or purports to be made, after the commencement of this Act in exercise of a power of attorney contains a statement by the donee that, at the time the instrument is made, the donee has not received notice of the revocation of the power of attorney, that statement is, in favour of all persons dealing with the donee in good faith, for valuable consideration and without notice of the death of the donor of the power of attorney or of any other revocation of the power of attorney, conclusive that the power of attorney had not been revoked at that time.


                  (6)        An instrument may contain the statement referred to in subsection 5(5) in the body of the instrument or in a memorandum endorsed on the instrument, being a memorandum that, at the time the instrument is made —

(a)        is signed by the donee under the power of attorney in the presence of a witness;

(b)        is attested by that witness; and

(c)        states the date on which, and the place at which, the memorandum is so signed and attested.

                  (7)        A person shall not execute, in pursuance of a power of attorney, an instrument that contains a statement that that person has not received notice of the revocation of the power of attorney when, in fact, the person knows that the power of attorney has been revoked.

Penalty:           Imprisonment for four years.

                  (8)        A person shall not, in a memorandum endorsed on an instrument executed by him in pursuance of a power of attorney, make a statement which he knows to be untrue.

Penalty:           Imprisonment for four years.

                  (9)        This section applies in relation to powers of attorney —

(a)        executed in or out of Norfolk Island; or

(b)        executed before or after the commencement of this Act.

                  (10)      In this section, “revocation”, in relation to a power of attorney, means the determination of the power of attorney otherwise than by the expiration of a fixed period of time, and includes  —

(a)        the revocation of the power by the donor; or

(b)        the death of the donee; or

(c)        the retirement or resignation of the donee; or

(d)       the legal incapacity of the donor (other than in the case of an enduring power of attorney) or the donee; or

(e)        if the donor or donee becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or

(f)        an order of the Supreme Court.

Irrevocable power of attorney for value

      6.         (1)        Where a power of attorney is given for valuable consideration and is, in the instrument creating the power of attorney, expressed to be irrevocable, then, in favour of a person dealing with the donee under the power of attorney for valuable consideration —

(a)        the power of attorney shall not at any time be revoked by anything done by the donor of the power of attorney without the concurrence of the donee and shall be deemed not to be revoked by the death, lunacy, unsoundness of mind or bankruptcy of the donor;

(b)        an act done by the donee at any time in pursuance of the power of attorney is as effectual in law as if anything done by the donor without the concurrence of the donee had not been done or as if the death, lunacy, unsoundness of mind or bankruptcy of the donor had not happened; and

(c)        the donee or the person shall not at any time be prejudicially affected by notice of anything done by the donor without the concurrence of the donee or of the death, lunacy, unsoundness of mind or bankruptcy of the donor.

                  (2)        This section applies to a power of attorney created by an instrument, whether executed in or out of Norfolk Island, which is executed after the commencement of this Act.

Power of attorney irrevocable for fixed period

      7.         (1)        Where a power of attorney is, in the instrument creating the power of attorney, expressed to be irrevocable for a fixed period specified in the instrument, being a period not exceeding two years from the date of the instrument, then, in favour of a person dealing with the donee under the power of attorney for valuable consideration —

(a)        the power of attorney shall not be revoked before the expiration of the fixed period by anything done by the donor of the power of attorney without the concurrence of the donee and shall be deemed not to be revoked before the expiration of the fixed period by the death, lunacy, unsoundness of mind or bankruptcy of the donor of the power of attorney;

(b)        an act done by the donee before the expiration of the fixed period in pursuance of the power of attorney is as effectual in law as if anything done by the donor without the concurrence of the donee had not been done or as if the death, lunacy, unsoundness of mind or bankruptcy of the donor had not happened; and

(c)        the donee or the person shall not at any time be prejudicially affected by notice, either before or after the expiration of the fixed period, of anything done by the donor during the fixed period without the concurrence of the donee or of the death, lunacy, unsoundness of mind or bankruptcy of the donor during the fixed period.

                  (2)        This section applies to a power of attorney created by an instrument, whether executed in or out of Norfolk Island, whether given for valuable consideration or not and whether executed before or after the commencement of this Act.

Protection of purchaser under irrevocable power of attorney

      8.         Where an act or thing within the scope of a power of attorney to which either sections 6 or 7 apply is done or suffered by the donee under the power of attorney after the power of attorney is revoked by the donor with the concurrence of the donee but within the period, if any, fixed by the power of attorney, that act or thing is, in favour of a person dealing with the donee in good faith, for valuable consideration and without notice of that revocation, as effectual in law as if the power of attorney had not been so revoked.

Registration of powers of attorney

      9.         (1)        There shall be kept, at the office of the Registrar, a register to be known as the Register of Powers of Attorney, which shall contain a copy of every instrument registered under this Act.

                  (2)        Subject to subsection 9(3), a person may, upon payment of a fee of 2 fee units, register an instrument, whether executed before or after the commencement of this Act, creating a power of attorney or revoking a power of attorney —

(a)        by producing the instrument to the Registrar and depositing with the Registrar a copy of the instrument verified as a true copy by the statutory declaration of a credible person who has compared the copy with the original instrument of which it purports to be a true copy; or

(b)        if the person is unable to produce the instrument to the Registrar by reason of the fact that the power of attorney has been registered by, or filed or deposited with, an officer of a State or Territory of the Commonwealth under a law of that State or Territory - by depositing with the Registrar —

(i)         a copy of the instrument certified as a true copy by the officer having the custody of the instrument; or

(ii)        a copy of the instrument which is, by virtue of the law of the State or Territory under which the instrument was so registered, filed or deposited, evidence of the contents of the instrument in the State or Territory.

                  (3)        The Registrar may refuse to accept for registration a copy of an instrument which, in his opinion —

(a)        is not legibly printed or written;

(b)        is not on paper of a size and standard approved by him; or

(c)        will not, if bound in the Register of Powers of Attorney, be easily readable.

                  (4)        Upon registering an instrument under this Act, the Registrar shall endorse on the copy of the instrument deposited with him a memorandum of the registration of the instrument and of the date and time of registration and —

(a)        shall, if the original instrument has been produced to him, endorse such a memorandum on the instrument; or

(b)        shall, if a copy of the instrument has been deposited with him under paragraph 9(2)(b) and the person depositing the copy so requests and produces to the Registrar a further copy of the instrument duly verified to be a copy, endorse such a memorandum on the further copy.

                  (5)        The Registrar shall keep an index of instruments registered, or deemed to be registered, under this Act.

                  (6)        The fee for an endorsement by the Registrar on the further copy of an instrument deposited with him under paragraph 9(4)(b) is 2 fee units.


Certain powers of attorney deemed to be registered

      10.       Where an instrument creating a power of attorney, or a copy of an instrument creating a power of attorney, has, before the commencement of this Act, been filed or deposited at the office of the Registrar, the instrument shall be deemed to be registered under this Act.

Effect of registration of powers of attorney

      11.       (1)        Where an instrument creating a power of attorney is executed after the commencement of this Act, a conveyance, deed, transfer, agreement or other document, not being a lease or agreement for a lease for a period less than one year, executed by the donee in pursuance of the power of attorney is not of any force or validity until the instrument creating the power of attorney is registered.

                  (2)        Upon the registration of an instrument creating a power of attorney, a conveyance, deed, transfer, agreement or other document to which subsection 11(1) applies takes effect as if the instrument had been registered before the conveyance, deed, transfer, agreement or other document was executed.

Searches

      12.       A person may, on payment of a fee of .50 fee unit search in the index and register kept by the Registrar under this Act.

Accounts

      13.       (1)        The donee under a power of attorney must keep true and accurate records of transactions entered into as donee charging or otherwise disposing of any of the assets of the donor, whether or not for valuable consideration.

                  (2)        The donee must as soon as practicable after receiving a request from the donor, furnish to the donor at the donor’s expense a true copy of the records referred to in subsection 13(1).

Penalty:           10 penalty units.

Enduring powers of attorney

      14.       (1)        A power of attorney created by an instrument that appoints an attorney or an attorney and an agent and  —

(a)        expressly evidences an intention on the part of the donor that the power granted to the attorney shall continue in effect notwithstanding a subsequent legal incapacity of the donor; and

(b)        in addition if the donor wishes to appoint an agent, expressly evidences an intention on the part of the donor that if the donor is unable through any incapacity (including legal incapacity) so to do, the agent may make decisions on behalf of the donor as to any medical treatment (including the withdrawal of medical treatment) that the donor could make if he were not so incapacitated; and

(c)        has been executed in the presence of two adult witnesses neither of whom are the donee or agent or a near relative of the donee or agent and who declare that each believe that in making the enduring power of attorney the donee is of sound mind and understands the import of the document; and

(d)       has on it an endorsement, or has a statement annexed to it, of acceptance by the donee and agent (if an agent is appointed) in or to the effect of the form in Schedule 2,

is an enduring power of attorney and may be exercised by the donee or agent notwithstanding a legal incapacity of the donor occurring after the execution of the instrument creating the power.

                  (2)        The donee of an enduring power of attorney must not exercise the donee’s powers unless the enduring power of attorney is registered.

                  (3)        The donor of an enduring power of attorney may appoint —

(a)        a single attorney; or

(b)        two or more joint attorneys; or

(c)        two or more joint and several attorneys; and

(d)       if a power is given under paragraph 14(1)(b)

(i)         an agent; or

(ii)        an agent and an alternate agent but not a joint or joint and several agent but may not enable the agent to appoint a substitute, delegate or sub-agent; and

(iii)       an agent or alternate agent may also be an attorney.

                  (4)        If two or more joint donees are appointed, all the donees can act only if they all agree and any documents must be signed by all of them.

                  (5)        If two or more joint and several donees are appointed  —

(a)        all the donees can act together if they all agree and any documents can be signed by all of them; or

(b)        any of the donees can act and sign documents together or alone.

                  (6)        If an alternate agent is appointed, the alternate agent may only act if the alternate agent believes that the agent is dead, legally incapacitated or cannot be contacted or that the agent's whereabouts are unknown and at least 7 days before the alternate agent makes any decision about medical treatment the alternate agent delivers to the person or persons responsible for the medical treatment of the donor, and to the Registrar of the Supreme Court, a statutory declaration setting out the alternate agent’s belief and the reason for holding it (including details of all inquiries made and information received).

                  (7)        A person responsible for the medical treatment of a donor may refuse to accept the statutory declaration of the alternate agent on the grounds that  —

(a)        the reasons, enquiries, or information mentioned in the statutory declaration do not form a reasonable basis for the statement of belief set out in that declaration; or

(b)        the agent can be contacted and is not incompetent.

                  (8)        An enduring power of attorney shall be substantially in the form of Schedule 1.

Power of Supreme Court in relation to enduring powers of attorney

      15.       (1)        If a donor ceases to have legal capacity, the donee or agent of an enduring power of attorney must not resign or refuse to act without the leave of the Supreme Court.

                  (2)        A person who has an interest in property that may be dealt with by the donee of an enduring power of attorney may, at any time after the donor of the power becomes legally incapacitated, apply to the Supreme Court for an order  —

(a)        to require the donee of the enduring power of attorney to file in the Supreme Court and serve on the applicant for the order a copy of the records referred to in subsection 13(1); and

(b)        to require the records referred to in subsection 13(1) to be audited by an auditor appointed by the Court and for a copy of the auditor’s report to be furnished to the Court and to the applicant for the order; and

(c)        to revoke or vary the terms of the instrument creating the enduring power of attorney as the Court thinks fit, including by the appointment of a substitute donee.

                  (3)        A grant of leave under subsection 15(1) or an order under subsection 15(2) may be subject to such conditions as the Supreme Court thinks fit.

________

 


SCHEDULE 1

Powers of Attorney Act 1959

Subsection 14(8)

ENDURING POWER OF ATTORNEY

THIS ENDURING POWER OF ATTORNEY is made on                                               , by me in pursuance of section 14 of the Powers of Attorney Act 1959.

1.             I APPOINT                                             to be my attorney and I APPOINT                                         to be my agent.*

 

2.     (a)   I AUTHORISE my attorney to do on my behalf anything that I may lawfully authorise an attorney to do.

 

2.     (b)   I AUTHORISE my agent to make decisions about medical treatment on my behalf.*

 

3.             I DECLARE that this power of attorney shall continue to operate and have full force and effect notwithstanding that I may subsequently become incapable.

 

4.             I REVOKE all enduring powers of attorney heretofore made by me.

 

SIGNED SEALED AND DELIVERED by [insert name of donor]

                                                                                                                    ……………………………..

                                                                                                           [signature of donor]

We [insert name of first witness] and [insert name of second witness] each believe that [insert name of donor]………………………in making this Enduring Power of Attorney is of sound mind and understands the import of this document.

Witnessed by [signature of first witness]…………………………….

Witnessed by [signature of second witness]……………………………..

* delete as applicable

________

 


SCHEDULE 2

Powers of Attorney Act 1959

Paragraph 14(1)(d)

ACCEPTANCE OF ENDURING POWER OF ATTORNEY

 

I,                              , the donee/agent* of the enduring power of attorney created by the instrument on which this acceptance is endorsed/to which this acceptance is annexed*, acknowledge that  —

 

(a)           the power of attorney is an enduring power; that is it may, if it is registered, be exercised by me notwithstanding any legal incapacity, within the meaning of the Powers of Attorney Act 1959, of the donor of the enduring power of attorney, occurring after the execution of the instrument; and

 

(b)           I will, by accepting this enduring power of attorney, be subject to the requirements of the Powers of Attorney Act 1959.

                                                                                            ……………………………….

(Donee/Agent* of the power of attorney)

* delete where not applicable

_______________________________________________________________________

NOTES

The Powers of Attorney Act 1959 as shown in this consolidation comprises Act No. 2 of 1959 and amendments as indicated in the Tables below.

Enactment

Number and year

Date of commencement

Application saving or transitional provision

 

 

 

 

Powers of Attorney Act 1959

2, 1959

11.6.59

 

 

 

 

 

[Reprinted previously as at 1.1.1965]

 

 

 

 

Fees Act 1976

3, 1976

31.5.76

 

 

 

 

 

Statute Law Revision (Penalties and Fees) Act 1984

9, 1985

13.5.85

 

 

 

 

 

Statutes Amendment (Fees) (No. 2) Act 1999

17, 1999

17.7.00

 

 

[Consolidated previously as at 1 March 2002]

 

 

 

 

Powers of Attorney Amendment Act 2004

5, 2004

26.3.04

 

 

 

 

 

[Consolidated previously as at 4 May 2004:  NB - re-issued as at 7 April 2009 – amendments to Table of Provisions only; further re-issued 15 January 2015 to amend page header]

________

 

 


 

Table of Amendments

 

ad =    added or inserted

am = amended

rep = repealed

rs =      repealed and substituted

 

  Provisions affected               How affected

 

2

am

5,2004

3

am

5, 2004

5(10)

am

5, 2004

9(2)

am

9, 1985

9(2)

am

 9, 1985

9(6)

ad

 3, 1976

 

am

 9, 1985;  17, 1999

11

am

5, 2004

12

am

 9, 1985

13

ad

5, 2004

14

ad

5, 2004

15

ad

5, 2004

Schedule 1

ad

5, 2004

Schedule 2

ad

5, 2004

_______________________________________________________________________

 

 

 

 

 

© Norfolk Island Government 18 March 2015

The Copyright Act 1968 of the Commonwealth of Australia permits certain reproduction and publication of this legislation. For reproduction or publication beyond that permitted by the Act, written permission must be sought from the Legislative Counsel, Administration of Norfolk Island, Norfolk Island, South Pacific 2899.