Schedule 1

An instrument is not made in accordance with this Schedule unless —

subject to paragraph 3, it is in any of the forms provided at the prescribed website;

it complies with paragraph 2; and

any prescribed requirements in connection with its execution are satisfied.(2) Part 2 of the Electronic Transactions Act 2010 does not apply to the making or execution of an instrument under this Schedule.(3) Regulations may make different provision according to whether —

the instrument relates to personal welfare or to property and affairs (or to both);

only one or more than one donee is to be appointed (and if more than one, whether jointly or jointly and severally).Requirements as to content of instruments2.—

The instrument must include —

the information specified in any of the forms mentioned in paragraph 1(1)(a) about the purpose of the instrument and the effect of a lasting power of attorney;

a statement by the donor to the effect that the donor —

has read the information mentioned in sub‑paragraph (a) (or has had it read to the donor); and

intends the authority conferred under the instrument to mean authority to make decisions on the donor’s behalf in circumstances where the donor no longer has capacity;

a statement by the donee (or, if more than one, each of them) to the effect that the donee —

has read the information mentioned in sub‑paragraph (a) (or has had it read to the donee); and

understands the duties imposed on a donee of a lasting power of attorney under sections 3 (principles) and 6 (best interests); and

a certificate by a person of a prescribed description that, in the person’s opinion, at the time when the donor executes the instrument —

the donor understands the purpose of the instrument and the scope of the authority conferred under it;

no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney; and

there is nothing else which would prevent a lasting power of attorney from being created by the instrument.(2) The certificate may not be given by a person appointed as donee under the instrument.Failure to comply with form3.—

If an instrument differs in an immaterial respect in form or mode of expression from any form for an instrument provided at the prescribed website, it is to be treated by the Public Guardian as sufficient in point of form and expression.(2) The court may declare that an instrument which is not in any form for an instrument provided at the prescribed website is to be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.(3) To avoid doubt, an instrument is treated as being made in any form for an instrument provided at the prescribed website if it complies with a form that was provided at the prescribed website at the time of its making.Part IIRegistrationApplications and procedure for registration4.—

An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney must be in the form provided at the prescribed website.(2) The application may be made —

by the donor;

by the donee or donees; or

if the instrument appoints 2 or more donees to act jointly and severally in respect of any matter, by any of the donees.(3) The application must be accompanied by —

the instrument; and

such fee as may be prescribed.(4) A person who, in an application for registration, makes a statement which the person knows to be false in a material particular shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both.(5) Subject to paragraphs 8 to 10, the Public Guardian must register the instrument as a lasting power of attorney at the end of the prescribed period if the application complies with sub-paragraphs (1), (2) and (3).Notification to donee

As soon as is practicable after receiving an application by a donee (or donees) under paragraph 4(2)(b) and determining that the application is in order, the Public Guardian must notify the donor that the application has been received.(2) As soon as is practicable after receiving an application by a donee under paragraph 4(2)(c) and determining that the application is in order, the Public Guardian must notify —

the donor; and

the donee or donees who did not join in making the application,that the application has been received.Notification requirements

If it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 is not made in accordance with this Schedule, the Public Guardian must not register the instrument unless the court directs him or her to do so.(2) Sub-paragraph (3) applies if the court determines under section 18(1) that the instrument contains a provision which —

would be ineffective as part of a lasting power of attorney; or

would prevent the instrument from operating as a valid lasting power of attorney.(3) The court must —

notify the Public Guardian that it has severed the provision; or

direct the Public Guardian not to register the instrument.(4) Where the court notifies the Public Guardian that it has severed a provision, he or she must register the instrument with a note to that effect attached to it.Deputy already appointed9.—

Sub-paragraph (2) applies if it appears to the Public Guardian that —

there is a deputy appointed by the court for the donor; and

the powers conferred on the deputy would, if the instrument were registered, to any extent conflict with the powers conferred on the attorney.(2) The Public Guardian must not register the instrument unless the court directs him or her to do so.Objection by donee 10.—

Sub-paragraph (2) applies if a donee —

receives a notice under paragraph 5 or 6(2)(b) of an application for the registration of an instrument; and

before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration on the ground that an event mentioned in section 15(3) or (5)(a) to (d) has occurred which has revoked the instrument.(2) If the Public Guardian is satisfied that the ground for making the objection is established, he or she must not register the instrument unless the court, on the application of the person applying for the registration —

is satisfied that the ground is not established; and

directs the Public Guardian to register the instrument.(3) Sub-paragraph (4) applies if a donee —

receives a notice under paragraph 5 or 6(2)(b) of an application for the registration of an instrument; and

before the end of the prescribed period —

makes an application to the court objecting to the registration on a prescribed ground; and

notifies the Public Guardian of the application.(4) The Public Guardian must not register the instrument unless the court directs him or her to do so.Objection by donor11.—

This paragraph applies if a donor —

receives a notice under paragraph 6 of an application for the registration of an instrument; and

before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration.(2) The Public Guardian must not register the instrument unless the court, on the application of the donee or, if more than one, any of them —

is satisfied that the donor lacks capacity to object to the registration; and

directs the Public Guardian to register the instrument.Registration12.—

The Public Guardian may register an instrument in any form and manner as the Public Guardian may determine (including in an electronic form and by electronic means).(2) Where the Public Guardian registers an instrument under this Schedule, the Public Guardian must give notice of such registration, in the form provided at the prescribed website, to the following persons:

the donor;

the donee or, if more than one, each of them.Evidence of registration, etc.13.—

The Public Guardian may, in accordance with any prescribed requirements (if prescribed), give to a person a copy of, or certify a copy of, an instrument registered by the Public Guardian under this Schedule to create a lasting power of attorney.(2) A copy of the instrument given or certified by the Public Guardian under sub‑paragraph (1) is prima facie evidence of —

the contents of the instrument; and

the registration of the instrument by the Public Guardian,on the date and time specified on that copy.Part IIICancellation of Registration and Notification of SeveranceCancellation of registration14.—

The Public Guardian must cancel the registration of an instrument as a lasting power of attorney on being satisfied that the power has been revoked —

as a result of the donor’s bankruptcy; or

on the occurrence of an event mentioned in section 15(5)(a) to (d).(2) If the Public Guardian cancels the registration of an instrument, he or she must notify —

the donor; and

the donee or, if more than one, each of them.Direction by court to cancel registration

determines under section 17(2)(a) that a requirement for creating the power was not met;

determines under section 17(2)(b) that the power has been revoked or has otherwise come to an end; or

revokes the power under section 17(4)(b) or (c).Circumstances for severance or cancellation16.—

Sub-paragraph (2) applies if the court determines under section 18(1) that a lasting power of attorney contains a provision which —

is ineffective as part of a lasting power of attorney; or

prevents the instrument from operating as a valid lasting power of attorney.(2) The court must —

notify the Public Guardian that it has severed the provision; or

direct the Public Guardian to cancel the registration of the instrument as a lasting power of attorney.Delivery of instrument on cancellation of registration

the instrument;

any copies of the instrument that have been certified by the Public Guardian under paragraph 13.Part IVRecords of Alterations in Registered PowersPartial revocation of power as a result of bankruptcy

which has terminated the appointment of the donee; but(b)which has not revoked the instrument,the Public Guardian must attach to the instrument a note to that effect.Replacement of donee

If the Public Guardian is required to attach a note to a registered instrument under paragraph 18, 19, 20 or 21, any person who possesses all or any of the following documents must deliver them to the Public Guardian:

the instrument;

any copies of the instrument that have been certified by the Public Guardian under paragraph 13.(2) The Public Guardian may attach to the registered instrument, the note in any form and manner as the Public Guardian may determine (including in an electronic form and by electronic means).Notification of alterations

To avoid doubt —

a registered instrument under this Schedule;

a copy of a registered instrument given by the Public Guardian under this Schedule;

a copy of a registered instrument certified by the Public Guardian under this Schedule; or

a note attached to a registered instrument by the Public Guardian under this Schedule,is not to be denied legal effect, validity or enforceability solely on the ground that it is in the form of an electronic record.(2) In this paragraph —“electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;“electronic record” means a record generated, communicated, received or stored by electronic means in an information system or for transmission from one information system to another;“information system” means a system for generating, sending, receiving, storing or otherwise processing electronic records.[10/2016; S 526/2014; S 500/2019]