Advance personal plan in the Northern Territory

Introduction

Actively planning for the future may help to ensure that you can live your later years in wellbeing and security.

Sometimes, due to accidents, illness or ageing, people become unable to make their own decisions about finances, lifestyle, health and medical care, and legal matters. There are steps you can take now to ensure that if this should happen to you, your decisions can still be made – and made according to your wishes and preferences.

Types of powers of attorney

In the Northern Territory there are two legal documents that allow you to appoint someone else to act as a decision-maker on your behalf:

a general (non-enduring) power of attorney
an Advance Personal Plan (which replaced the enduring power of attorney in the Northern Territory in 2014)

The two documents can specify who can make decisions for you, which decisions they can make, and when they can make them. The decision-maker that you nominate is known as the ‘attorney’, and you are known as the ‘donor’.

To be able to make a power of attorney or an Advance Personal Plan, you must:

be over the age of 18
understand the effect of making the document
have decision-making capacity at the time of making the document

Other states and territories have similar documents, although they may have different names and different rules.

1. General power of attorney

A general power of attorney is only for financial matters and can only be made and used while you have capacity to make your own decisions. It ends if you lose decision-making capacity, so it’s not a future planning tool.

Typically, a general power of attorney is in place for a specific time – for example, if you are travelling overseas or are in hospital and therefore need someone else to manage your finances on a temporary basis.

Under a general power of attorney, the person you have appointed to act on your behalf is only able to do so for the time, task or circumstances you’ve specified. For example, if you regularly travel, you could authorise your attorney to make financial decisions whenever you are overseas.

If your general power of attorney does not have any specified limits in place, it ends when you no longer have decision-making capacity or when you die.

2. Advance Personal Plan

In the Northern Territory, enduring powers of attorney were replaced in 2014 by Advance Personal Plans. An enduring power of attorney made prior to 17 March 2014 remains valid.

An Advance Personal Plan is used to appoint a person, several people or a trustee organisation to act as a substitute decision-maker for you in financial, legal, lifestyle, and healthcare matters if you no longer have the capacity to make your own decisions.

You can appoint substitute attorneys to act in all or some of these matters. You can appoint different substitute attorneys for different tasks – for example, you could appoint a family member to manage financial matters and a friend to make lifestyle decisions.

You can only make an Advance Personal Plan while you still have decision-making capacity. The plan comes into force immediately it is made, although its powers are only enacted when you lose decision-making capacity. It ends if:

there is a time limit stipulated in the plan
it is revoked by the donor or the Northern Territory Civil and Administrative Tribunal (NTCAT)
the donor dies

The Advance Personal Plan has three parts:

Advance Care Statement
Advance Consent Decision
Appointment of Decision-makers

The Advance Care Statement is a statement in which you can express your wishes and views on how you would like your attorneys, healthcare professionals and any other carers to act when making decisions about you.

The form itself contains some useful questions that can help you to think about what you value and what level of medical care/treatment you would like to receive when you are nearing the end of your life. The form also recommends that you talk with your attorney, family and doctor about this part of the form before finalising it.

While the statement is intended to guide your attorney and is not legally binding, the legislation makes it clear that appointed attorneys should give ‘effect’ to the wishes and views set out in the statement. This means that they attorneys must respect the donor’s wishes and instructions.

Where there is no statement, attorneys are expected to make decisions based on what they believe the person would have done.

The legislation also makes it clear that wherever possible, attorneys should continue to involve the donors in decision-making.

The Advance Consent Decision section of the form is where you can outline your decisions about future medical treatments and procedures, such as instructions about the use of life support or decisions about organ transplants. If it’s completed, this section of the form is legally binding, which means that your attorney and health care providers must act on your decisions.

The Appointment of Decision-makers section of the form is where you can name one or more attorneys and stipulate what decisions or matters they can resolve. You can appoint different people for different decisions or allow all your attorneys to act on all matters. It’s up to you.

You do not have to complete all of these sections of the form – you can complete all three, two sections or only one. You do need to complete the personal details section of the form and the signing and witnessing section.

Every Australian state and territory has different rules governing powers of attorney. It’s important to check the rules in other jurisdictions if you think your attorney may need to act on your behalf in financial matters in other jurisdictions.

What is ‘capacity’?

Capacity is a legal term that refers to a person’s ability to make their own decisions. People may have capacity throughout their adult years and look after their own financial and other decisions, but they may lose capacity due to an accident, illness or the adverse effects of ageing.

You have decision-making capacity if you are able to:

understand the information relevant to the decision and the effect of the decision
retain that information to the extent necessary to make that decision
use or weigh up that information as part of the process of making the decision
communicate the decision and the person’s views and needs in some way, including by speech, gestures or other means.
An Advance Personal Plan only takes effect when a person ‘loses capacity’, which means they have become unable to make their own decisions

Choosing an attorney

Who can be appointed?

In the Northern Territory you can appoint as your attorney anyone over the age of 18 who has the capacity to make their own decisions. You can appoint someone under the age of 18, but the role cannot commence until the person turns 18.

You can appoint family members, friends, a lawyer, a licenced trustee company, the Public Trustee or the Public Guardian.

Can I have more than one attorney?

In the Northern Territory you can appoint more than one person to act as your decision-maker. If you do appoint more than one person, you can authorise them to make decisions individually (known as ‘severally’) or together (known as ‘jointly’), or a combination of jointly and severally.

For example, you could require all decisions related to real estate to be made jointly but allow each of your decision-makers to severally make decisions about spending money on your day-to-day expenses.

If you appoint decision-makers to act on any or all matters jointly, their decisions must be unanimous. If joint decision-makers cannot come to a unanimous decision, they may seek an order from NTCAT to resolve the matter.

In this article, ‘attorney’ is used as a reference to both one appointed attorney and multiple appointed attorneys.

What are the attorney’s responsibilities when acting on my behalf?

The Northern Territory legislation requires the attorney to act in ways that are in your interest and reflect or consider your wishes. Where possible they should support your participation in decision-making.

They must:

act in your best interests
keep good records of transactions and decisions
keep your finances separate from their own

While you can choose to include a clause or option in your Advance Personal Plan that allows your attorney to benefit from your money and property – for example, cover their living costs – they cannot use your money or property for their own benefit without your authorisation. However, they can reimburse themselves for reasonable costs that they incur managing your affairs.

If your attorney has financial management powers, they can buy gifts for others on your behalf. They may provide financial maintenance for a dependant of yours, if you provided support when you had capacity or if they have reasonable grounds to believe that, in the circumstances, you would have provided financial maintenance. For more information on maintenance of dependants, see the Advance Personal Planning Act 2013.

You can limit or place conditions on the attorney’s decision-making power. For example, you can require them to submit accounts to a nominated accountant every year, or you can explicitly authorise the attorney to make specific gifts or restrict them from giving gifts to particular people.

What if my attorney is not acting in my best interests?

While you still have capacity, you can cancel the Advance Personal Plan if you feel that your attorney may not be acting in your best interests or may be taking your money or property.

If you should lose decision-making capacity, you would not be able to cancel the Advance Personal Plan. However, another person with an interest in your welfare can apply to NTCAT to have the actions of your attorney’s actions investigated if they become concerned.

What happens in the Northern Territory if you lose capacity and don’t have an Advance Personal Plan?

If you do not have an Advance Personal Plan and you no longer have capacity to make your own decisions, NTCAT can appoint a family member or friend as your decision-maker.

If there is no one suitable, they can appoint the Public Guardian.

Making and changing

You can use the standard form on the Northern Territory Government website to make your power of attorney. The webpage has clear, step-by-step instructions on what to do.

In the Northern Territory you may also write your own general power of attorney document. If you do write your own, make sure it contains no errors or mistakes, as this can result in it being invalid. The document needs to include:

your name and address
the date the power was given by you
clear information about what decisions or actions the attorney are allowed to take on your behalf
a sample signature of the attorney

Do I need to have a lawyer prepare my power of attorney or Advance Personal Plan?

You do not need to get a lawyer to prepare a power of attorney or Advanced Personal Plan, but the Northern Territory Government recommends that you do seek legal advice when preparing these documents. In most cases you will need to pay for this advice or for assistance in preparing the documents.

Do I have to register my power of attorney or Advance Personal Plan?

You do not have to register either document in the Northern Territory unless the power of attorney authorises your attorney to sign documents relating to real estate matters, such as selling your home. In that case, the general power of attorney needs to be registered with the Northern Territory Land Titles Office.

However, there are good reasons to register a power of attorney or an Advance Personal Plan anyway. Registration:

ensures there is a copy of the document available if the original is lost
creates a public record of the documents
provides the attorney/decision-maker with clear evidence for others that they are authorised to act on your behalf

You should give certified copies of your Advance Personal Plan to your decision-makers, and if your plan includes health care you should also update My eHealth Record.

Who can witness a power of attorney and Advance Personal Plan?

A general power of attorney must be witnessed by a qualified witness, such as a:

Justice of the Peace
Commissioner of Oaths
police officer
solicitor

The person named as your attorney in the document cannot be a witness, even if they are in one of the qualified witness categories.

An Advance Personal Plan must be signed by the person making it in the presence of an authorised witness. The following people are authorised witnesses:

Justices of the Peace
Commissioner for Oaths
legal practitioners
police officers
health professionals
accountants
chief executive officers of local government authorities
social workers
principals of Northern Territory schools

As with general powers of attorney, the person named as your attorney in the document cannot be a witness, even if they meet the criteria for an authorised witness.

Can I change or cancel my general power of attorney?

You can change or revoke a general power of attorney at any time provided you have decision-making capacity. If you have registered your power of attorney and either cancel or make changes to it, you will need to revoke the registered version and, if necessary, register a new or amended power of attorney.

Your attorney can’t change your power of attorney, but they can withdraw it. This might happen if you have lost decision-making capacity but they are no longer able to act as your attorney.

If you registered your power of attorney, you will need to complete a withdrawal form and submit it to the Land Titles Office. A fee will apply.

Whether or not you have registered your general power of attorney, you will need to tell your appointed decision-maker that you have changed or cancelled the power of attorney. It’s recommended that you do this in writing so that there is a clear record of the advice.

An Advance Personal Plan can only be cancelled or changed if you still have capacity to make your own decisions. To change a registered Advance Personal Plan you need to create a new plan and lodge it with the Public Trustee. To cancel a registered Advance Personal Plan you need to contact the Public Trustee directly. If you no longer have decision-making power, only NTCAT can revoke or change your plan.

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Checklist and resources

This checklist will guide you through the process of making an Advance Personal Plan (APP) in the Northern Territory. It will show you what to think about and connect you to relevant information.

This checklist includes the following:

Background information and resources to help you research and prepare to make an APP.
Practical information you will need to consider before completing the APP form.
Helpful information to help you complete the APP form.
Information about how to correctly sign and witness your APP.
Information about registration requirements and tips on where and how to store your APP.
Information to assist you should you want to change or revoke your APP.

More resources

Disclaimer: The information provided on this website is not a substitute for individual legal advice.

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