35Who are interested persons and
parties in relation to applications
(1)Interested persons who may
make applications
Each of the following persons is an interested person in relation to the
making of applications under this Division in respect of a reviewable power of
attorney:
(a)
an attorney (including an attorney whose
appointment has been purportedly revoked),
(b)
the principal,
(c)
any person who is:
(i)
a guardian of the principal (whether under the
Guardianship Act 1987 or any other Act
or law), or
(ii)
an enduring guardian of the principal under the
Guardianship Act
1987,
(d)
any other person who, in the opinion of the
review tribunal, has a proper interest in the proceedings or a genuine concern
for the welfare of the principal.
(2)Parties to proceedings in
respect of an application
Each of the following persons is a party to an
application in respect of a reviewable power of attorney:
(a)
the applicant,
(b)
each attorney under the power (if the attorney is
not the applicant),
(c)
the principal (if the principal is not the
applicant),
(d)
any other person that the review tribunal
concerned has joined as a party under subsection
(3).
(3)Joinder of
parties
A review tribunal may, on its own initiative or
on the application of an interested person, decide to join, as a party to any
proceedings before the tribunal under this Division, any person who, in the
opinion of the tribunal, should be a party to the proceedings (whether because
of the person’s concern for the welfare of the principal or for any
other reason).
(4)
(5)Applicant to be notified of
joinder
If a review tribunal joins a person as a party to
any proceedings, the tribunal must, as soon as practicable, notify the
applicant (or cause the applicant to be notified)
accordingly.
s 35: Am 2007 No 12,
sec 4; 2013 No 23, Sch 1 [12].
36Interested persons may apply
for review
(cf 1919 No 6, s 163G)
(1)Tribunal may review making or
operation and effect of power
A review tribunal may, on the application of an
interested person, decide to review the making, revocation or the operation
and effect of a reviewable power of attorney or not to carry out such a
review.
(2)
As a consequence of reviewing the making,
revocation or operation and effect of a reviewable power of attorney, a review
tribunal may decide whether or not to make an order under this
section.
(3)Orders relating to making of
power of attorney
A review tribunal may make either or both of the
following orders with respect to the making of a power of attorney:
(a)
an order declaring that the principal did or did
not have mental capacity to make a valid power of
attorney,
(b)
an order declaring that the power of attorney is
invalid (either in whole or in part) if the tribunal is satisfied:
(i)
the principal did not have the capacity necessary
to make it, or
(ii)
the power of attorney did not comply with the
other requirements of this Act applicable to it, or
(iii)
the power of attorney is invalid for any other
reason, for example, the principal was induced to make it by dishonesty or
undue influence.
(3A)Orders relating to revocation
of power of attorney
A review tribunal may make either or both of the
following orders with respect to the revocation of a power of attorney:
(a)
an order declaring that the principal did or did
not have mental capacity to revoke a power of attorney,
(b)
an order declaring that the power of attorney
remains valid (either in whole or in part) if the tribunal is
satisfied:
(i)
the principal did not have the capacity necessary
to revoke it, or
(ii)
the revocation is invalid for any other reason,
for example, the principal was induced to make the revocation by dishonesty or
undue influence.
(4)Orders relating to operation
and effect of power
A review tribunal may, if satisfied that it would
be in the best interests of the principal to do so or that it would better
reflect the wishes of the principal, make any one or more of the following
orders relating to the operation and effect of a power of attorney:
(a)
an order varying a term of, or a power conferred
by, the power of attorney,
(b)
an order removing a person from office as an
attorney,
(c)
an order appointing a substitute attorney to
replace an attorney who has been removed from office by a review tribunal or
who otherwise vacates the office,
(d)
an order reinstating a power of attorney that has
lapsed by reason of any vacancy in the office of an attorney and appointing a
substitute attorney to replace the attorney who vacated
office,
(e)
an order directing or requiring any one or more
of the following:
(i)
that an attorney furnish accounts and other
information to the tribunal or to a person nominated by the
tribunal,
(ii)
that an attorney lodge with the tribunal a copy
of all records and accounts kept by the attorney of dealings and transactions
made by the attorney under the power,
(iii)
that those records and accounts be audited by an
auditor appointed by the tribunal and that a copy of the report of the auditor
be furnished to the tribunal,
(iv)
that the attorney submit a plan of financial
management to the tribunal for approval,
(f)
an order revoking all or part of the power of
attorney,
(g)
such other orders as the review tribunal thinks
fit.
(5)Orders relating to mental
capacity of principal
A review tribunal may make an order relating to
the operation and effect of a power of attorney declaring that the principal
lacked or lacks capacity because of mental incapacity at a specified time or
during a specified period or for the time being. An enduring power of attorney
can not be lawfully revoked by the principal while the principal is declared
to be incapable by such an order.
(6)Effect of order declaring
mental incapacity for the time being
If a review tribunal makes an order under this
section declaring that a principal under a reviewable power of attorney lacks
capacity through mental incapacity for the time being, the principal is to be
taken, for the purposes of the operation of the power of attorney, to lack
such capacity for such period (if any) specified in the order or until further
order of the tribunal.
(7)Orders may be subject to terms
and conditions
An order made under this section may be made
subject to such terms and conditions as the review tribunal thinks
fit.
(8)Further orders relating to
accounts and information
If a review tribunal makes an order under this
section directing an attorney to furnish accounts or other information, the
tribunal may decide to make further orders for:
(a)
limiting the disclosure of accounts or other
information by the attorney, and
(b)
inquiry and report on the conduct of the
attorney.
(9)Order reinstating lapsed power
of attorney may have retrospective operation
If a review tribunal makes an order under this
section reinstating a power of attorney that has lapsed by reason of a vacancy
in the office of an attorney, the order may also direct that it has effect
from the time at which the power of attorney originally
lapsed.
(10)Effect of order removing or
appointing attorney or altering power
The removal or appointment of an attorney, or the
alteration or revocation of a power of attorney, under this section has effect
as if:
(a)
it were done in due form by the principal,
and
(b)
the principal were of full capacity and were, to
the extent necessary, authorised to do the thing in question by the instrument
creating the power.
(11)Review tribunal may exercise
functions despite instrument
A review tribunal may exercise a function under
this section despite anything to the contrary in the instrument creating the
power.
(12)Section does not affect
irrevocable powers of attorney
This section has effect subject to the provisions
of Part 3 (Irrevocable powers of attorney).
s 36: Am 2013 No 23,
Sch 1 [13] [14].