Enduring Power of Attorney – free legal advice & updates for the rest of your life
What is an Australian Enduring Power of Attorney?
An Enduring Power of Attorney (POA) is a legal document. It allows you to appoint a person to make decisions about your assets. The POA deals with your assets e.g. real estate and bank accounts.
What cannot the Australian POA do?
The POA is an “economic” document. Your POA does not deal with your health, medical treatment or lifestyle. To do this, instead build a Medical POA on our website. Also, the person receiving your EPA cannot:
- vote in any elections
- make a Will (but you can build a Will for your parents)
- sign another POA
- act as a Trustee
- control your body (instead, you need a Medical POA)
However, the person receiving your Enduring Power of Attorney, can open and close bank accounts, pay debts, and buy and sell land. This is provided it is in your ‘best interests’ to do so.
With our power of guardianship you are protected for the rest of your life
- you and the attorneys you appoint are protected by our law firm
- read the hints, watch the training videos and speak with us as you build the Power of Attorney
- unlimited number of updates for the rest of your life for the Power of Attorney
- for the rest of your life telephone the law firm anytime for help using Power of Attorney.
- your attorneys telephone us for help using Power of Attorney
- your Power of Attorney is on a monitoring service, if the POA or legislation change we notify you immediately
- the Power of Attorney comes with a letter on how to sign and use the Power of Attorney
Free and ongoing advice for your attorneys on using the Australian Enduring Power of Attorney
Included in the cost of your Power of Attorney is free advice for your attorneys. Your attorneys are not alone:
- there is information about how to use the POA in our covering letter. The letter comes with the POA.
- our law firm helps them and shows them how to use the POA. We are always available to them.
Many Enduring Powers of Attorney built on governments websites do not work. Sadly, it is only after you need to use them does this become apparent.
We give you and your family ongoing support on the POA. Often when a parent loses mental capacity the children telephone us for help and assurance. For free, we explain how to use the Enduring POA and what they need to do.
This is one such example. Recently, a bank manager in Sydney kept the original POA for our client’s son (our client has dementia). The banker refused to hand back the original. Our client’s son presented our covering letter to the banker, which states that the original is to be handed back to our client’s son. The bank manager still refused to do so. A Legal Consolidated lawyer rang the bank’s legal team in Melbourne and was able to get the POA back for our client’s son. That was done at no charge because the POA was prepared by our law firms.
Further, there are unlimited updates on the POAs so they can be updated as often as you wish.
How does the person receiving my POA actually use the Power of Attorney?
Here are some examples:
Example 1 – POA and your bank account
The persons you appoint walk into the bank. They present to the bank clerk with your Savings Account book and an original POA. Your bank clerk stares blankly at them. He sees his bank manager. The bank manager explains to the bank clerk that those persons “now stand in your shoes”. They can do whatever you could do with the bank account. The bank manager asks to take a copy of the POA for future reference. The bank manager tries to keep the original POA but the persons you nominate decline and get back the original POA. The transaction on the bank account takes place.
Example 2 – Signing a document on your behalf using a POA
You tell the persons that you nominated, to sign a lease agreement. You are on holidays overseas and email is unavailable. Your attorney contacts the landlord. They:
- tell the landlord that there is a POA
- tell the landlord that they are signing the lease on your behalf
- they sign in their usual signature area and write under the signatures “signed as attorney for *your name* under a POA dated ## Month, year”.
You are now bound to the lease. The landlord may photocopy the POA to attach to the lease.
Free updates of your Australian Enduring POA
You can update your POA for free. If you ever want to update your POA just email us and we send you a voucher. With the voucher, you can change the POA as you want. You can update your POA as often as you wish for free.
You can also update your Lifestyle/Medical POA and 3-Generation Testamentary Trust Wills for free. As often as you wish. For free.
How does my Australian Enduring POA help me if I am stranded overseas?
Q: I am thinking that I want my POA to only operate ‘when I am of unsound mind‘? (I don’t want to choose ‘immediately‘.) But what if I am later stranded overseas. Can my wife use the Enduring POA to sign bank documents on my behalf?
A: With respect, this is a common but not a smart question:
- Why does the POA need to be even used? Don’t they have electricity, emails and FedEx couriers in the country you are going to? I don’t know about you but I haven’t walked into a bank for years. I do everything over the Internet.
- If the POA only comes into effect when you are of unsound mind then of course it cannot be used. It is dormant until you become of unsound mind. So obviously your wife can’t use it.
- There are 8 different types of POAs in Australia. But if you can, you usually appoint your wife for the POA to come into effect immediately. And only after your wife cannot do the job do you let one or two of your children carry out the job of being an attorney. As you build the POA the logic flow will let you know if your State or Territory allows that.
When do the Attorneys need to accept?
There is no legal requirement for an attorney to accept your POA within any time frame. An attorney can accept your POA many years later. And if you have appointed more than one attorney they can accept many years apart from each other. They don’t need to accept your POA on the same day. Indeed your attorneys may be living outside of Australia in different countries. However, your POA won’t come into operation for that attorney until that attorney does sign. But the signing can be done when the POA is actually needed.
Does my attorney need to hold one of the original POAs?
After you build your POA, you print off two copies. You sign both copies. Both copies are originals. There is no legal requirement to hand over one of your original POAs to any of your attorneys. You may, however, wish to do so. At the very least:
- speak to your potential attorneys to make sure they are happy to take on the onerous job of holding the attorney position
- let them know where the POA is kept “at my home in my grey filing cabinet and when it is needed you can get the POA and accept it then”
- you may wish to email them a soft copy and the covering letter that we provide so they can understand how it can be used in the future (it can be signed or unsigned, it is just a soft copy). If they need a hand, later on, they can telephone us for advice.
Attorneys always act in my best interest
People think when you appoint someone under a POA you give them ‘power’. It is quite the opposite. You are getting yourself a free slave. They must always act in your best interest. They cannot gain an advantage from holding your POA. That is a terrible burden on anyone.
Your enduring attorney is in a fiduciary relationship with you.
Fiduciary relationships are where the person acts in your best interest. They put your interest above their own. A financial planner, accountant, lawyer, director and trustee all bear that difficult burden.
Your enduring attorney does not profit from their role as your enduring attorney. They cannot gain a personal benefit. They cannot benefit to a third party.
Do I need an Enduring POA in every State I have property in?
Australia is a federation of States. Each State has its own Enduring POA. For example, a Victorian POA only works while you are in the State of Victoria. The enduring power of attorney document in New South Wales and Western Australia is less than five pages. The Queensland POA is up to 20 pages.
If you live in two States then you need to build two POAs. Build the first POA for one state. Then, build the second POA, as a second document, for the other state. (You can carry over the answers from the first document into the second document, to save you having to answer the questions again.) You should have a POA in each State that you have land in.
Different POAs for each State of Australia
Each Australian jurisdiction has its own legislation governing POAs. There are 8 different types of enduring (money) POAs in Australia:
- Powers of Attorney Act 2000 (Tas)
- Powers of Attorney Act 1980 (NT)
- Powers of Attorney Act 1998 (Qld)
- Powers of Attorney Act 2006 (ACT)
- Powers of Attorney Act 2003 (NSW)
- Powers of Attorney and Agency Act 1984 (SA)
- Property Law Act 1969 (WA) and Guardianship and Administration Act 1990 (WA)
- Powers of Attorney Act 2014 (Vic)
Each POA has its own peculiar wording and signing.
Except for WA, all jurisdictions recognise an out-of-state POA:
- Victoria: validly made EPOA made in another State or Territory is recognised in Victoria. Section 138 Powers of Attorney Act 2014 (Vic).
- NSW: POA made in another State or Territory is recognised in NSW. Section 25 Powers of Attorney Act 2003 (NSW).
- SA: Interstate POA is valid to the extent that the powers it gives under the laws of the jurisdiction in which the POA was made could validly have been given by a POA made under the South Australia Act. Section 14 Powers of Attorney and Agency Act 1984 (SA).
- QLD: A POA made in another jurisdiction which complies with the requirements of that other jurisdiction is recognised to the extent that the powers it gives could validly have been given by a Queensland POA. Section 34 Powers of Attorney Act 1998 (Qld).
- WA: Sadly, the attorney must first apply to the WA State Administrative Tribunal. This is for an order recognising the POA in WA. The Tribunal must be satisfied that the form and effect of the POA correspond sufficiently to a POA made in Western Australia. Section 104A Guardianship and Administration Act 1990 (WA).
- TAS: A POA ‘registered’ in another jurisdiction validly registered in Tasmania. Further, a POA made in another jurisdiction can be registered in Tasmania. But, only if it complies with the laws of Tasmania or the laws of another Australian jurisdiction. Sections 42 and 43 Powers of Attorney Act 2000 (TAS). However, as a sign of how out of touch the Tasmanian government is, there is no ‘registration’ in any other jurisdiction, other than Tasmania. Only Tasmania keeps a register of enduring and medical POAs.
- NT and ACT: recognise POAs and common law POAs. In the Northern Territory and ACT, the interstate POA or common law POA is treated as though it was made under the respective NT or ACT Act.
States do not accept an ‘out of State’ POA
Most land title offices do not acknowledge or even want to look at POAs made out of their home State. They say “we don’t have time to look at strange POAs from other States”. So you have to take the above recognition with a pinch of salt.
Similarly, banks can barely understand a ‘local’ POA. They are also unlikely to want to act on an ‘exotic’ out-of-State POA.
So, contrary to the above list, usually an out-of-State POA is not recognised. You need an Enduring POA in every State and every country in which you own assets. For example, if you have assets in Double Bay in NSW and the Gold Coast in QLD then you need two POAs. One for NSW. And another for QLD.
My attorney lives in another State. In which jurisdiction do I prepare my POA?
Q: I live in Sydney. But my Enduring and Medical Power of Attorney person I am appointing lives in Victoria. In which State do I prepare my POA?
A: Get your Enduring POA where you have your assets. If you have assets in NSW then you need a NSW POA. If you have no assets in Victoria then you do not need a Victorian POA. Where your attorney (person you appoint) lives is not relevant.
For example, your home is in Blacktown, NSW. That settles the matter. You need a NSW POA. The person you appoint can live in Melbourne or London. But that makes no difference. You need a NSW POA because you own assets in NSW.
For a ‘lifestyle/medical’ POA that is different. A lifestyle/medical POA is prepared in the State you live in. If you live in Adelaide then you prepare a South Australian Medical POA. If you live in Brisbane then you prepare a QLD medical POA. Where the person you appoint lives is not relevant.
I have never been to Australia. Can I still build an Australian POA?
The law firm has a client. He has never been to Australia. And he also has no reason and no interest in coming to Australia.
Our client prepared three Enduring POAs for: NSW, Victoria and QLD.
Our client appointed attorneys who have never been to Australia. And his attorneys have no interest in ever coming to Australia.
Why did our client build these three Australian POAs? The client received from his mum and dad’s mutual Wills real estate in three States of Australia. In every State he owns real estate he needs an Enduring POA.
He obviously has not prepared a medical/lifestyle POA. This is because he does not live in Australia.
Signing and accepting POAs out of Australia
Australian POAs prepared on Legal Consolidated’s website are designed so that neither the Donor or Donee need to be in Australia. In fact, there is no requirement that either have ever set foot on Australian soil. Or will never come to Australia. That is fine.
But the signing of the POA by the Donor and the acceptance by the Donee can be harder is you are signing out of Australia. All 8 Australian POAs and all 8 Australian Medical/Lifestyle POAs have unique signing requirements. And these requirements are not lessened just because you are giving or receiving the POA outside of Australia.
It is important that the person giving the POA signs immediately. But the persons receiving the POAs can sign anytime. They do not have to sign with the Donor. They can accept the POA many years later in any country.
To labour the point: a person can sign, say a NSW Legal Consolidated POA in London. And 3 years later his son can accept the POA in Germany. And 2 years later his daughter can accept the POA in say, Tasmania. Of course the POA cannot be used until the children have signed. But the children do not have to be with their Dad when he signs the POA.
Get a medical certificate to confirm you are of sound mind with when signing a POA?
With all Legal Consolidated POAs, Medical/Lifestyle POAs and 3-Generation Testamentary Trust Wills and even simple Wills, get a doctor’s certificate. The doctor’s certificate states that you have the mental capacity to sign legal documents such as POAs and Wills.
Keep that Medical Certificate with the POA and your other estate planning documents.
The Medical Certificate helps prove you were of sound mind when you signed the Enduring Power of Attorney.
If you do not get a Medical Certificate then people can argue that you did not have mental capacity to sign the POA. They seek to have your POA and Will rendered void.
Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm
National: 1800 141 612
Mobile: 0477 796 959
Email: [email protected]