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Enduring powers of attorney in different jurisdictions

Helen Phelps

21 Nov 2018

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  • Wills & Estates

Establishing an enduring power of attorney allows us to decide what will happen if we have impaired decision-making capacity. But what happens if we move between Australian states and territories?  Will our wishes still be followed? In this article, Helen Phelps, Associate with Snedden Hall & Gallop Lawyers, talks about enduring powers of attorney in different Australian jurisdictions.

Enduring power of attorney

An enduring power of attorney allows us to appoint someone to make decisions for us if our decision-making capacity becomes impaired. In the ACT, an enduring power of attorney operates in accordance with the Powers of Attorney Act 2006 (ACT). The person we appoint can make decisions for us in relation to property, financial, personal care and healthcare matters.

Variations between Australian states and territories

Each Australian state and territory allows for the appointment of an enduring power of attorney. However, each jurisdiction has separate and distinct legislation. For example, the situation in the ACT is different from that in Victoria. In Victoria, an attorney can be appointed under the Powers of Attorney Act 2014 (VIC). However, a medical treatment decision-maker is appointed under the Medical Treatment Planning and Decisions Act 2016 (VIC).

Similarly, in the Northern Territory, appointing a power of attorney is governed by the Powers of Attorney Act (NT) and the Advance Personal Planning Act (NT).

Moving between jurisdictions

This jurisdictional inconsistency may cause you to ask questions about what happens if you move between states or territories. Each Australian jurisdiction’s legislation provides for the recognition of documents prepared in another jurisdiction. However, the extent and operation of this recognition varies between each jurisdiction.

Moving from the ACT

Taking a common example for ACT residents – what happens if you’ve had documents prepared in the ACT but move to Queanbeyan? Will the enduring power of attorney still be recognised, or do you need to prepare NSW documents to appoint an enduring power of attorney and an enduring guardian? Under the laws in NSW, an enduring attorney appointed in another state will be recognised in NSW. In NSW a person who makes decisions regarding personal care and healthcare matters is known as a ‘guardian’. In the ACT these decisions are made by the attorney.

An attorney will still be recognised in NSW as a decision-maker for personal care and healthcare matters, but only to the extent of the powers that were established in the original jurisdiction. For example, if an attorney is appointed in the ACT to make decisions about healthcare but not personal care matters, they will only be recognised in NSW as a decision-maker for healthcare matters. Their power is not automatically expanded, but nor is it reduced, by relocation.

Moving to the ACT

Similarly, if you’ve moved to the ACT, documents you’ve had prepared elsewhere in Australia will be recognised in the ACT. The document will be treated as one made in compliance with ACT laws.

Making it easier for yourself

While this is the legal position, often organisations will question documents that aren’t prepared in the form of their state or territory. For example, aged care facilities in NSW may not be familiar with an ACT enduring power of attorney. This means the attorney must prove the document and the basis on which it is recognised in NSW. Therefore, it’s common to prepare new documents if you’re thinking of moving to a new state or territory. It can also be a good time to review and update your other documents generally. This is particularly important if you’ve had a change of personal circumstances since you last reviewed these documents.

How can Snedden Hall & Gallop assist?

Our Wills & Estates team can advise you if you have moved to the ACT and have had documents prepared elsewhere, or if you’ve had documents prepared in the ACT and are moving elsewhere. Please contact us today by email or on 6285 8000.