An issue can sometimes arise where an attorney seeks to enter into transactions in a jurisdiction outside of where the power of attorney was originally made.
An Enduring Power of Attorney (EPOA) made in one Australian state or territory is generally recognised in other states and territories, but some important conditions and limitations apply.
Under Section 14 of the Powers of Attorney and Agency Act 1984 (SA) and similar provisions in other jurisdictions, an EPOA made in accordance with the laws of one state or territory is recognised in others, provided it meets certain legal requirements. This recognition is based on a principle of mutual recognition to ensure that legal documents retain their effect when people move or conduct business across borders within Australia.
However, while recognition is possible, practical issues may arise. Each state and territory has its own laws governing the format, scope, and use of EPOAs. For example, the terminology, witnessing requirements, and powers granted may vary. Some financial institutions or service providers may be unfamiliar with EPOAs from another jurisdiction, which can lead to delays or refusals to act without legal clarification.
It is also important to note that medical or personal decision-making authorities (such as an Advance Care Directive or Enduring Guardianship) are separate from financial EPOAs in many states and may not be automatically recognised interstate unless expressly provided for in local laws.
To ensure seamless recognition and use, individuals who relocate or hold or propose to hold assets in multiple states should review their EPOA with a lawyer in the additional jurisdiction. It may be advisable to execute a new EPOA that complies with the specific laws of that state or territory, reducing the risk of disputes or administrative issues.
Whilst Queensland now recognises a power of attorney that is validly made in New Zealand as being valid, no other States in Australia currently automatically recognise overseas power of attorney documents. In those situations power of attorney documents need to be considered on a case by case basis and may require the engagement of a Notary Public and the involvement of the relevant countries’ consulate in order to satisfy a Court as to cross jurisdictional validity. If that sounds complicated and expensive then it is likely to be so.
In summary, while an interstate EPOA is generally valid, having one tailored to the laws of the relevant state can provide greater certainty and ease of use. Legal advice is recommended when establishing a power of attorney relocating or dealing with cross-border matters.
If you would like to know more- please contact one of our solicitors on 08 8344 6422.