Enduring Power of Attorney
$108 includes GST
For every state • NSW • VIC • QLD • WA • SA • TAS • NT • ACT
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.
Limitations on an Australian POA do?
Australian POAs have limits.
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 or a Victorian Medical Treatment Decision Maker on our website.)
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/lifestyle POA or NSW Power of Guardianship)
- stand in for you as a director of a company (instead, build a Company POA)
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 changes 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 cover 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 government websites do not work. Sadly, 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 cover 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 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 your:
- Savings Account book; and
- The original Legal Consolidated Enduring 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.
If the bank manager does not know what to do, your children or attorneys call Legal Consolidated. And, at no charge, we talk with the bank manager. This is part of the service that you paid for when you built your POA on our law firm’s website.
This free service is only for Legal Consolidated POAs. If you do not have a Legal Consolidated POA then good luck. About 32% of POAs prepared on state government websites do not work. And about 12% of law firm-prepared POAs do not work.
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 holiday overseas and email is unavailable. Your attorney contacts the landlord. For Legal Consolidated POAs:
- 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 the attorney for *your name* under a POA dated ## Month, the year”.
You are now bound to the lease. This is thanks to the actions of your attorneys. The landlord may photocopy the POA to attach to the lease. If you are unsure, then for all Legal Consolidated POAs your attorneys get free advice.
If you do not have a Legal Consolidated POA then speak to the lawyer that prepared the POA. They will give you the procedure based on how that law firm prepared your POA. (Legal Consolidated does not advise on non-Legal Consolidated POAs.)
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.
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. 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 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 cover 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 from 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 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 from having to answer the questions again.) Build a POA in each State in which you own land.
Example of a person needing a POA in two states of Australia
You live in London. (Perhaps you are an Australian or a foreigner, it makes no difference.) You own property in both Melbourne and Sydney. You need to build two separate POAs. One is built under the laws of Victoria. And a second POA for the state of New South Wales. Your attorneys can even live in other countries. That is fine. For example, your first attorney lives in South Africa and the second attorney lives in Yugoslavia.
So in this example, a UK person is building two Australian POAs on Legal Consolidated’s website. And appointing people that live in other countries. That is common and normal. Legal Consolidated POAs are drafted to allow this.
But, the Victorian POA only works in the State of Victoria. And the NSW POA only works within the boundary of NSW.
If you have assets in other states or other countries then you need to build POAs for those jurisdictions as well.
You need POA for each State of Australia – they do not work across state borders
Each Australian jurisdiction has its 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 state’s POA has its peculiar wording and signing. Depending on which State POA you build on our website, you get a cover letter on how to sign. We are a national Australian law firm.
Except for WA, all jurisdictions recognise an out-of-state POA – (well not really):
- 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 that 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 andACT: 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.
The truth is, in practice, 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 an 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.
Does my Australian POA work in London?
Of course not. A POA in one state of Australia will not even work in another state of Australia (see above). You need to instruct a UK law firm. (Email and we can recommend some UK law firms.)
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 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 nor the Donee needs to be in Australia. There is no requirement that either has 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 if 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.
The person must give the POA signs immediately. However, the persons receiving the POAs can sign at a later time. They do not have to sign with the Donor. They can accept the POA many years later in any country.
To labor the point: a person can sign, say an 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.
Difference between an ‘enduring’ and ‘medical/lifestyle/guardianship’ power of attorney?
Each state and territory has its own:
- Enduring POA: deals with money and property. E.g. open and close bank accounts, sell real estate and shares.
- ‘Medical/Lifestyle’ Decision Maker: deals with your body and lifestyle when you lose mental capacity. E.g. where you live, retirement homes, who you associate with, doctors, and medical treatment.
Note: each state and territory calls a medical/lifestyle POA by different names:
The ‘Enduring/money” and the “lifestyle/medical” documents each do different things. You need both.
Get a medical certificate confirming sound mind when signing a POA
With all Legal Consolidated POAs, Medical/Lifestyle POAs 3-Generation Testamentary Trust Wills, and even non-tax effective 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 argue that you did not have the mental capacity to sign the POA. They seek to have your POA rendered void