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Cross-border issues with enduring powers of attorney

This section highlights a range of cross-border issues resulting from the fact that each of Australia’s states and territories has its own version of an enduring power of attorney (EPOA) with varying names, powers and processes.

Last updated: 21 September 2022

Each of Australia’s states and territories has its own version of an enduring power of attorney (EPOA) with varying names, powers and processes. These differences can be confusing. For example, if you are the person making an EPOA, you might be known as the ‘principal’ or the ‘donor’. The people you nominate to make your decisions might be your ‘attorney’, or maybe your ‘donee’.

The variations from state to state can be especially confusing for those who rely on the EPOA when they are supporting you, such as your doctor, bank, accountant, nominated attorneys or donees, family and friends, and care providers.

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Confusing examples …

  • In Queensland, to safeguard your personal and healthcare decisions, you nominate an attorney in your EPOA. But in New South Wales, you nominate an enduring guardian in an ‘enduring guardianship’ document. And in both Queensland and New South Wales, an attorney is the person you nominate to manage your financial matters!

  • In the ACT, you can nominate attorneys to manage both your finances and your personal matters in the same document, an EPOA. But in New South Wales, to cover these two matters you must complete two documents – an EPOA for financial matters, and an Enduring Power of Guardian for personal matters.

  • Australians tend to travel, and older Australians seem particularly keen on travelling around our huge continent. This can cause some challenges for your future planning. Let’s say you are from Melbourne and have made an EPOA in Victoria. If you become unwell in another state while travelling, will your Victorian EPOA be recognised where you are?  

  • If your attorney lives in a different state to you, which state’s documents will apply?

  • You may own property in other states or territories. Which state’s EPOA would apply to the management of those matters?

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Legislation to the rescue

To end the confusion, each of the states and territories has now passed legislation that recognises the other states’ future planning documentation.

For your future planning documents to be recognised in another state or territory, they must have been validly completed – including being correctly witnessed – according to the laws of the state or territory they were made in.

For example, in South Australia, your EPOA must be witnessed by one person who’s authorised to witness statutory declarations, such as a Justice of the Peace, while in Western Australia only one of your two witnesses must be someone with that authority.

Here is a list of the legislation for each jurisdiction that allows future planning documents to be recognised interstate and which documents they apply to.

Case studies

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Bruno and Sarina

Bruno owns a house in Queensland, where he has lived for 40 years. During that time, Bruno made an EPOA appointing his daughter Sarina, who lives in New South Wales, as his attorney for personal, health and financial matters.

Last year Bruno agreed to return to New South Wales so he could live closer to Sarina and her brother, Angelo. He moved into Sarina’s new home. Since then, Bruno’s memory has been declining, and Sarina has started making decisions for him.

While things were going well initially, Sarina and Bruno have now had a falling out and Bruno has been forced to leave the house. Now he wants to remove (revoke) Sarina’s power, but his GP doesn’t think he has capacity to revoke the EPOA or make a new one.

Bruno has had the help of an advocate to make an application to the New South Wales Civil and Administrative Tribunal (NCAT) to revoke the EPOA. NCAT says it is not their jurisdiction to deal with because the EPOA was made in Queensland and that Bruno needs to make an application to the Queensland Civil and Administrative Tribunal (QCAT).

However, QCAT do not think they can help Bruno because he is living in New South Wales. Bruno cannot receive legal help from Legal Aid in either Queensland or New South Wales for the QCAT process.

This is a common scenario. Because his doctor considers that he no longer has capacity to revoke or make another EPOA, Bruno’s options are limited. As he is living in New South Wales, he (or others helping him) would be able to apply to NCAT to have a new guardian and administrator appointed for making his decisions instead of Sarina.

Because Sarina has been making decisions for Bruno, she can’t simply step away or formally notify her father that she is no longer able to continue as his attorney (which is called ‘vacating office’). She would probably need to ask QCAT to allow her to vacate office — although due to the animosity in the relationship, she may refuse to do so.

If NCAT makes an appointment for a new guardian and administrator for Bruno, the paperwork confirming the appointment could be presented to QCAT to seek revocation of the EPOA.

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Enrique and Patrick

Enrique lives in Adelaide with his husband Patrick. Recently the two decided to travel around Australia as grey nomads. Shortly after being married Enrique and Patrick had both made Advance Care Directives and EPOAs, appointing each other as substitute decision-makers, but they did not take the original documents with them on their travels. 

While in the Northern Territory, Enrique suffered a stroke and needed medical and personal care decisions made. Patrick produced a certified copy of Enrique’s advance care directive. The treating team was concerned about whether Patrick could consent to Enrique’s medical care under the advance care directive because it wasn’t made in the Northern Territory and wasn’t on a form or using language that they were familiar with.

Northern Territory legislation recognises health decision documents made in other states and says they can be followed. So, once the treating team verifies that Enrique’s advance care directive was validly made (which means, it complied with South Australia’s signing and witnessing requirements), they can use it to guide them about Enrique’s views and wishes. It also means that, if necessary, Patrick can consent or refuse treatment for Enrique as his nominated substitute decision-maker.

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Tribunal case example 

Cross-border issues can be complex to resolve. To see just how complex, you might like to read the following story of a cross-border case, KNT [2020] NSWCATGD 93, that was heard by the New South Wales Civil and Administrative Tribunal (NCAT) in 2020.

The initials ‘KNT’ represent a person who was visiting New South Wales when NCAT received requests to review her EPOA, which she had made in the ACT in 2017.

1)   Can the tribunal hear the matter?

The first point considered was, is the tribunal allowed to handle this case when KNT didn’t live in New South Wales? NCAT looked at the Guardianship Act 1987 (NSW) and other legal cases before deciding that yes, it was appropriate for the case to come before it.

Next, NCAT next had to consider whether KNT had already appointed a guardian in New South Wales. In some states, KNT’s decision-making in all matters would be authorised by an EPOA, but in New South Wales she would also need to have set up an enduring power of guardianship. Based on evidence, NCAT decided that she hadn’t, which meant there was no New South Wales document that should be applied.

Read the judgement here

2)   What documents in the other state or territory have been completed?

Then, if KNT did not have any future planning documents that were made in New South Wales, NCAT needed to determine what she did have in place in other states or territories. The tribunal found that KNT had appointed her son as her attorney in a power of attorney that she had made in the ACT in 2017.

Read the judgment here

3)   Could NCAT make a decision using its own state laws on a matter involving documents made in another state?

Now that it knew what it was dealing with, NCAT had to review previous cases of interstate future planning documents to see how those were decided and on what basis. It looked closely at two different cases that had resulted in the tribunal deciding it could not agree to the requests to review those powers of attorney.

NCAT then compared the circumstances in those cases to the circumstances in KNT’s case to check how similar they were. The tribunal decided all three cases were similar enough for them to take note of the outcomes of the past two.

Finally, after much consideration, the tribunal decided that it should dismiss the request to review KNT’s ACT power of attorney because it could not apply New South Wales law to the case.

Read the judgment here

More information on powers of attorney