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Australian states must adopt a standard form for enduring powers of attorney to resolve the intestate issues plaguing accountants, lawyers and their clients, legal experts say.
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‘Uniform approach’ critical for resolving interstate EPOA issues, says barrister
19 March 2024
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The Society of Trust and Estate Practitioners, a body representing lawyers, accountants and estate practitioners, is calling for greater uniformity between different states and countries concerning EPOAs and the laws surrounding them.
Interstate enduring power of attorneys (EPOAs) continue to cause difficulty and confusion for professional advisers and their clients despite the fact they are meant to be recognised, according to barrister Jennifer Sheean.
Sheean, a nationally accredited mediator and member of STEP, explained that while each of the states and territories has passed legislation ensuring that documents created in other jurisdictions are recognised, issues in this area persist.
This is partly due to the different terminology and approaches used by the various states and territories as well as the issues that surround the review and revocation of documents, she said.
“One of the issues that we have in Queensland, for example, is that we have a single document where somebody can appoint a person for their financial affairs as well as their personal matters,” said Sheean.
“That’s not a normal thing around the rest of the country. So, if you’ve got a register of enduring powers of attorney and the Queensland document gets there, it is fundamentally difficult because it allows for other powers.”
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A uniform or largely uniform form for EPOAs would go a long way to dealing with some of these issues, according to Sheean.
“If you had a form that was standard, then the terminology is also going to be standard, and then a lot of the confusion would fall away at that point,” she said.
“Of course, you have to get the states to agree to that.”
Equities Trustees Limited senior legal counsel, Mercia Chapman, said that STEP has been advocating for a uniform form of power of attorney that would make recognition in other states much simpler.
“The Federal government is keen to implement some sort of registration system for powers of attorney but we’ve warned that it won’t work while there are some many different kinds of powers of attorney,” Chapman said.
Until there is a more uniform approach adopted among the states, Chapman said the safest option currently for individuals who have assets across different states is to hold a power of attorney for each of those states.
“That way you’ve got no issues with recognition. You may have issues with the bank acting on it and those sorts of problems but you won’t have recognition issues at least,” said Chapman.
The specialist lawyer said she also sees issues arise where real estate assets are involved with powers of attorney.
“In most states, you have to register the power of attorney with the local land title's office, where the land is situated, if you want to deal with real estate, whether that's buying or selling,” said Chapman.
“If the power of attorney is an interstate form, it may not meet the registration requirements of the state. So while it is recognised, for the purpose of opening and closing bank accounts and withdrawing funds and all of those sorts of things, when it comes to dealing with land, you sometimes strike a problem with registering your power of attorney.”
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