Assisted Decision-Making (Capacity) (Amendment) Act 2022

Amendment of section 59 of Principal Act

51. Section 59 of the Principal Act is amended—

(a) in subsection (1)—

(i) by the substitution of “sections 58A, 60” for “sections 60, 62”, and

(ii) in paragraph (a), by the substitution of “donor’s personal welfare or property and affairs, or both;” for “donor’s property and affairs; or”,

(b) in subsection (2), by the substitution of “this Part, regulations made under section 79 and specifications made by the Director under section 79A” for “this Part and regulations made under section 79”,

(c) in subsection (3), by the substitution of “acting as attorney, or resigns from his or her role as attorney” for “acting as attorney”,

(d) by the substitution of the following subsection for subsection (4):

“(4) An enduring power of attorney shall not enter into force until—

(a) the instrument creating the enduring power of attorney has been registered under section 69,

(b) the donor lacks capacity in relation to one or more of the relevant decisions which are the subject of the power,

(c) the Director has been notified under section 71A of the matters in paragraph (b), and

(d) the Director accepts the notification under section 71C.”,

and

(e) by the insertion of the following subsections after subsection (5):

“(5A) Where an enduring power of attorney confers authority under paragraph (a) or (b) of subsection (1) in relation to the personal welfare of the donor, this shall not authorise the attorney to consent to or refuse treatment for the donor.

(5B) A donor shall not, in an enduring power of attorney, purport to give a power to the attorney to consent to or refuse treatment for the donor and any provision of a power of attorney relating to such purported power shall be null and void.”.