New South Wales Enduring Powers of Attorney Explained

Enduring Powers of Attorney in Australia

NSW, Queensland, ACT and Western Australia Explained

An Enduring Power of Attorney is one of the most important estate planning documents you can have. It allows you to choose who will manage your financial affairs (and in some states, your personal and health decisions) if you lose decision-making capacity.

Although the core idea is similar across Australia, each state and territory has slightly different rules and terminology. This article brings together the position in New South Wales, Queensland, the Australian Capital Territory and Western Australia.

 

What Does an Enduring Power of Attorney Do?

In all four jurisdictions, a Power of Attorney lets you appoint an attorney to make financial decisions and manage your assets on your behalf. Typically, your attorney can:

• Access your bank accounts and set up or cancel direct debits
• Buy and sell shares
• Sell personal belongings
• Sell, lease or mortgage real estate
• Access your private financial information

You can also give extra powers, such as authority to:

• Make, vary or renew a superannuation binding death nomination
• Make provision for a spouse or dependant’s reasonable medical and living expenses
• Receive payment or compensation for acting as your attorney

These powers can be tailored in the document to suit your circumstances.

 

Enduring vs General Power of Attorney

A General Power of Attorney usually only operates while you have decision-making capacity. It will normally end if you lose capacity (for example, due to illness, injury, brain damage or dementia).

An Enduring Power of Attorney is different:

• It continues to operate even if you lose decision-making capacity; and
• You can choose whether it starts immediately, or only once a medical practitioner confirms you no longer have capacity to manage your own finances.

Because loss of capacity can be temporary or permanent and can occur at any age, it is important to put an Enduring Power of Attorney in place while you are of sound mind.

Who Should You Appoint?

You should appoint someone you trust absolutely to act in your best interests. This may be:

• A spouse or partner
• An adult child
• A trusted relative or friend
• In some cases, a professional adviser

If you appoint more than one attorney, you can specify whether they act:

• Jointly – all attorneys must agree and sign for decisions to be valid; or
• Jointly and severally – attorneys may act together or separately, and any one of them can authorise a decision.

 

Key Differences Between NSW, QLD, ACT and WA

The major practical difference between the four jurisdictions is which decisions can be made under the Enduring Power of Attorney, and whether a separate “guardian” document is needed.

Jurisdiction	What the Enduring Power of Attorney Covers	Separate Guardian Document?	Tribunal if You Have No EPA
NSW	Financial and legal decisions only	Yes – Enduring Guardian for medical and lifestyle decisions	NCAT (NSW Civil and Administrative Tribunal) can appoint a financial manager; NSW Trustee & Guardian may be appointed and charge fees
Queensland	Financial and personal/health decisions (unless limited)	No – one EPA covers both	QCAT (Queensland Civil and Administrative Tribunal) can appoint an administrator; Public Trustee of Queensland may be appointed and charge fees
ACT	Financial, personal and health-care decisions (unless limited)	No – one EPA covers both	ACAT (ACT Civil and Administrative Tribunal) can appoint a financial manager or guardian; Public Trustee and Guardian (ACT) may be appointed and charge fees
Western Australia	Financial and property decisions only	Yes – Enduring Guardian for medical and lifestyle decisions	SAT (State Administrative Tribunal) can appoint an administrator; Public Trustee of WA may be appointed and charge fees

 

New South Wales – Financial EPA and Enduring Guardian are required

In NSW, an Enduring Power of Attorney:

• Covers financial and legal decisions only;
• Does not permit medical, lifestyle or personal decisions (these require a separate Enduring Guardian appointment).

If you do not have an Enduring Power of Attorney and you lose capacity:

• A family member, friend or other interested party may need to apply to NCAT for a financial manager to be appointed;
• The Tribunal decides who will manage your finances – which may not be who you would have chosen yourself;
• Appointments are often limited in time, requiring repeat applications;
• If no suitable person is available, NSW Trustee & Guardian may be appointed and will charge fees, with government employees making financial decisions for you.

 

Queensland – One Document for Financial and Health Decisions

In Queensland, an Enduring Power of Attorney can cover:

• Financial decisions; and
• Personal and health decisions, including medical treatment and lifestyle matters, unless the document restricts this.

Queensland does not use a separate “Enduring Guardian” document.

If you lose capacity without an EPA:

• Someone may need to apply to QCAT for an administrator;
• QCAT chooses who will manage your affairs;
• If no appropriate person is available, the Public Trustee of Queensland may be appointed, and will charge fees for acting.

 

Australian Capital Territory – One Instrument for All Decisions

In the ACT, an Enduring Power of Attorney can authorise your attorney to:

• Make financial decisions;
• Make personal care, lifestyle and health-care decisions.

There is no separate guardianship instrument as in NSW and WA.

If you have no EPA and lose capacity:

• A family member, friend or other party may apply to ACAT for a financial manager or guardian;
• ACAT decides who is appointed, often for a limited period;
• If there is no suitable person, the Public Trustee and Guardian (ACT) may be appointed and will charge fees.

 

Western Australia – Financial EPA and Separate Enduring Guardian are required

In Western Australia, an Enduring Power of Attorney:

• Covers financial and property decisions only;
• Does not allow medical, lifestyle or personal decisions – these require a separate Enduring Guardian appointed under the Guardianship and Administration Act 1990 (WA).

If you lose capacity without an EPA:

• An application can be made to SAT for an administrator;
• SAT chooses who is appointed, often temporarily;
• If no suitable person is available, the Public Trustee of Western Australia may be appointed and will charge fees, with government employees making decisions about your finances and property.

 

Moving Between States or Owning Property in Multiple Jurisdictions

Each state and territory has its own requirements for Powers of Attorney and for recognising documents made elsewhere. While an Enduring Power of Attorney made in one jurisdiction may be recognised in another, in practice it is common to:

• Prepare a separate Enduring Power of Attorney for each state in which you:
  • Own property; or
  • Commonly live or spend significant time.

In many cases, this is easier and more cost-effective than registering a single document from one state into another jurisdiction, and it reduces uncertainty for banks, professionals and service providers dealing with your attorney.

If you:

• Live between states,
• Own property in multiple jurisdictions, or
• Are moving interstate,

it is wise to obtain legal advice about whether your existing documents are still suitable and what additional steps may be needed.

 

Why Put an Enduring Power of Attorney in Place Now?

An Enduring Power of Attorney is about control and certainty:

• You choose who will manage your finances (and in some states, health and lifestyle decisions);
• You set the limits of their authority;
• You reduce the risk that a tribunal or public trustee will be making decisions on your behalf.

Putting documents in place before you lose capacity is essential. Once capacity is gone, you cannot validly sign an Enduring Power of Attorney.