NOTE.-This draft assumes the prior enactment of a Bill in the terms of Appendix A. See paragraph 1.3 above.

BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows .-
 

1. This Act may be cited as the “Conveyancing and Mental Health (Amendment) Act, 1975”.	Short title.
2. The Conveyancing Act, 1919, is amended-	Amendment of Act No.6, 1919.
(a) by omitting from section 2,the matter “PART XVI. -POWERS OF ATTORNEY-SS. 158-163B.” andby inserting instead the matter-	Sec.2. (Division of Act).
PART XVI.-POWERS OF ATTORNEY
DIVISION 1.-General provisions-ss. 158-163B.
DIVISION 2.-Unsoundness of mind and handicap-ss. 163c-163H.	Part XVI. (Powers of Attorney).
(b) by inserting in Part XVI after the heading “POWERS OF ATTORNEY” the following new matter-
DIVISION 1.-General provisions.;
(c) by inserting in section 158 after subsection (1) the following new subsection:-	Sec.158. (Definition).
(1A) In sections 161, 162 and 162A, “suspended”, in relation to a power of attorney, means-
(a) suspended or restricted in operation by reason of unsoundness of mind of the principal occurring after the execution of the instrument creating the power; or
(b) suspended by section 110A (5) of the Mental Health Act, 1958;
(d) (i) by inserting in section 161 (1) after the words “had terminated”, the words “or had been suspended”;	Sec.161. (Termination: protection of attorney).
(ii) by inserting in the same subsection, after the words “any termination”, the words “or suspension”;
(iii) by inserting in the same subsection, after the words “not terminated”, the words “or had not been suspended”;
(e) (i) by inserting in section 162 (1) after the words “having terminated”, the words “and not being suspended”;	Sec.162. (Termination: protection of strangers).
(ii) by omitting paragraph (c) of the same subsection and by inserting instead the following paragraph”at the time of the act of the third person he does not have notice that, at the time of the act of the attomey, the power had terminated or was suspended so far as concerns the authority of the attorney to do that act;”;
(iii) by inserting in the same subsection, after the word “attorney” where secondly occurring in the matter following paragraph (c), the words “and notwithstanding any suspension of the power atthat time so far as concerns,authority to do that act”;
(iv) by inserting at the end of the same subsection the words “and were not suspended at that time;
(v) by inserting at the end of section 162 (2) the words “or notice of suspension of the power so, far as concerns authority to do that act”;
(f) by inserting in section 162A, after subsection (1), the following new subsection :-	Sec.162A. (Attorney acting with knowledge of termination of power).
(1A) Where a power of attorney is suspended so far as concerns authority to an attorney to do an act or thing of any nature and an attomey under the power, knowing of the suspension, does an act or thing of that nature under or in pursuance of the power, he shall be guilty of a misdemeanour.
(g) by inserting after section 163B the following new Division:-	New Division 2 of Part XVI.
DIVISION 2.-Unsoundness of mind and handicap.
163C. This Division applies only to a power of attorney given after the commencement of the Conveyancing and Mental Health (Amendment) Act, 1975.	Application.
163D. In this Division-	Interpretation.
“incommunicate” in relation to a person, means under such a handicap of body or mind, by way of coma, paralysis or otherwise, whether or not induced by any drug or by medical or other treatment, that he is unable to receive communications respecting his property or affairs, or to express his will respecting his property or affairs.
“protected power of attorney” means a power of attorney which is, in the instrument creating the power, expressed to be given with the intention that it will continue to be effective notwithstanding that after the execution of the instrument the principal suffers loss of capacity through unsoundness of mind.
163E. (1) Subject to this section, a power of attorney is not ineffective by reason that any act within the scope of the power is of a nature which is, at the time when the power is given, beyond the understanding of the principal)through unsoundness of mind.	Initial unsoundness of mind.
(2) Subject to subsections (3) to (6), a power of attorney does not authorise an attorney under the power to do an act of a nature which is, at the time when the power is given, beyond the understanding of the principal through unsoundness of mind.
(3) Where, on application by the principal under a power of attorney, it appears to the Court that the nature of the acts, or of some one or more of the acts, within the scope of the power was not at the time when the power was given, beyond the understanding of the principal through unsoundness of mind, the Court may by order confirm the power wholly or in part as the case requires.
(4) Where, on application by the principal under a power of attorney, it appears to the Court that the principal has before or during the proceedings on the application, affirmed the power wholly or in part, the Court may by order confirm the power wholly or in part as the case requires, but only to the extent to which it appears to the Court that the principal is, at the time of the affirmation, sufficiently of sound mind so to affirm.
(5) Where, on application by the principal under a power of attorney, it appears to the Court that-
(a) the power of attorney is a protected power of attorney or the principal is incommunicate; and
(b) it is for the benefit of the principal that the power be confirmed wholly or in part-
the Court may:by order confirm the power wholly or in part as the case requires.
(6) Where the Court makes an order under,this section confirming a power of attorney wholly or in part, an act within the scope of the power to the extent so confirmed, done after the order takes effect by an attorney under the power, shall be as good for all purposes and between all persons as if at the time when the order takes effect the principal were of full capacity and in due form confirmed the power of attorney to the extent of the order of confirmation.
(7) Subsection (5) applies. only if and so far as a contrary intention is not expressed in the instrument creating the power, and shall have effect subject to the terms of the instrument creating the power.
163F. (1) A power of attorney is effective so far as concerns any act within its scope, being an act of a nature which is not, at the time of the act, beyond the understanding of the principal through unsoundness of mind.	Supervening unsoundness of mind.
(2) A protected power of attomey is effective so far as concerns any act within its scope, notwithstanding that the act is of a nature which is, at the time of the act, beyondthe understanding of the principal through unsoundness of mind.
(3) This section does not save a power of attorney from being or becoming ineffective by reason of any matter other than unsoundness of mind of the principal arising after the execution of the instrument creating the power.
(4) This section applies only if and so far as a contrary intention is not expressed in the instrument creating the power, and shall have effect subject to the terms of the instrument creating the power.
163G. (1) This section applies to-	Protected power or incommunicate principal: judicial control.
(a) a protected power of attorney; and
(b) a power of attorney the principal under which is for the time being incommunicate.
(2) Where, on application by .the principal under a power of attorney, it appears to the Court to be for his benefit, the Court may, on his behalf, by order-
(a) remove a person from office as attorney;
(b) appoint a person to fill a vacancy in the office of attorney;
(c) with the consent of the attorney and of any other interested person-
(i) alter the scope of the power;
(ii) otherwise alter the instrument creating the power; or
(iii) alter the rights and duties of the principal and the attorney between themselves;
(d) direct an attorney to fumish accounts and other information to the Court orto a person approved by the Court; or
(e) revoke the power.
(3) For the purposes of subsection (2) (b), a vacancy in the office of attorney occurs in any of the following events
(a) renunciation of the power by an attorney;
(b) removal of an attorney by the principal or with his authority, or by the Court under subsection (2);
(c) disability of an attorney;
(d) death of an attorney;
(e) where an attorney is a corporation, liquidation or dissolution of the corporation; or
(f) other event personal to an attorney whereby his authority is terminated.
(4) Where the Court makes an order directing an attorney to furnish accounts or other information under subsection (2) (d), the Court may make further orders for-
(a) preventing unnecessary disclosure of the affairs of the principal; and
(b) inquiry and report on the conduct of the attorney.
(5) The Court may revoke a power of attorney under subsection (2) (e) notwithstanding anything in the instrument creating the power, but otherwise subsections (2), (3) and (4) apply only if and so far as a contrary intention is not expressed in the instrument creating the power, and shall have effect subject to the terms of the instrument creating the power.
(6) A removal, appointment, alteration or revocation under subsection (2) (a), (b), (c) and (e) shall have effect as if done in due form by the principal, and as if he were of full capacity and were, so far as necessary, authorised to do the thing in question by the instrument creating the power.
(7) This section has effect subject to section 160.
163H. (1) Wherethe principal under a power of attorney is incommumcate-	Incommunicate principal: procedure.
(a) proceedings under this Division by the principal-
(i) may be commenced and carried on as prescribed by rules of court; or
(ii) subject to rules of court, may be commenced and carried on as if the principal were of unsound mind; and
(b) subject to rules of court, all persons shall, in relation to the proceedings, be as nearly as may be in the like position in law as if the principal were of unsound mind.
(2) Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act, 1970.
3. The Mental Health Act, 1958, is amended by inserting after section 110 the following new section:-	Amendment of Act No.45, 1958.
110A. (1) In this section “principal” means a person who has given a power of attorney.	Powers of attorney.
(2) A power of attorney is not terminated by property of the principal becoming subject to management under this Act.
(3) Subsection (2) has effect subject to the terms of the instrument creating the power.
(4) A person may give a power of attorney notwithstanding that his property is subject to management under this Act.
(5) A power of attorney is suspended while property of the principal is subject to management under this Act -
(6) Notwithstanding subsection (5), where an attorney under a power of attorney does an act within the scope of the power while property of the principal is subject to management under this Act, the act of the attorney has no less validity and effect than the act of the attorney would have had if this section had not been enacted, but this subsection does not affect the operation of subsection (9).
(7) While a power of attorney is suspended by this section, the Court may restore the power of attorney to operation to such extent, and on such terms and conditions, as the Court thinks fit.
(8) The Court may restore a power of attorney to operation under subsection (7) as from any time whether before or after the order of restoration is made or takes effect.
(9) Where property of a principal is subject to management under this Act, the Court may-
(a) terminate the power of attorney; or
(b) order that the power of attorney be subject to such conditions and restrictions as the Court thinks fit.
(10) An attorney under a power of attorney and persons dealing with the attorney and all other persons shall have the like protections against any term or condition of any restoration of the power, and against any condition or restriction to which the power is subjected under this section as if the term, condition or restriction were effected by act of the principal.
(11) For the purposes of this secition-
(a) where a person becomes a patient, ‘his property thereupon becomes subject to management under this Act and remains so during his life or until his discharge or, if after his discharge the Protective Conu-nissioner continues to have the care, protection and management of any of his property, until the Protective Commissioner ceases to do so;
(b) where the Protective Commissioner takes charge of the estate of a voluntary patient under section 22, his property thereupon becomes subject to management under this Act and remains so during his life or until the Protective Commissioner gives up charge of the estate or until the discharge of the voluntary patient, whichever is the later, or if after his discharge the Protective Commissioner continues to have the care, protection and management of any of his property, until the Protective Commissioner ceases to do so;
(c) where a person be,comes a protected person or an incapable person, his property thereupon becomes subject to management under this Act and remains so duringhis life or until the Court makes a declaration in relation to him under section 40;
(d) where the Court directs a copy of an inquisition or finding in relation to a person to be filed of record in the Court under section 40, his property thereupon becomes subject to management under this Act and remains so during his life or until the Court declares that management of his estate under section 40 is not required; and
(e) where, in relation to a person, it is certified to the Protective Commissioner and the Protective Commissioner is authorised as mentioned in section 101 (1), the property of that person thereupon becomes subject to management under this Act and remains so during his life or until the Court declares that the exercise of the powers of the Protective Commissioner in relation to his property is not required.
(12) The Court may make a declaration for the purposes of paragraph (d) or (e) of subsection (11) on the application of the Protective Commissioner or of ,the person whose power of attorney is in question or of an attorney under the power of attorney.
(13) A declaration for -the purposes of paragraph (d) or (e) of subsection (11) shall not have any effect otherwise than for the purpose of the paragraph concerned.
(14) This section does not apply to a power of attorney given before the commencement of the Conveyancing and Mental Health (Amendment) Act, 1975.
(15) This section has effect subject to section 160 of the Conveyancing Act, 1919.