If you have moved to New South Wales from another Australian state or territory, or if you hold assets in more than one jurisdiction, you may be wondering whether your existing estate planning documents will be recognised.
In New South Wales, two key documents form part of effective estate planning beyond your Will.
- A Power of Attorney made under the Powers of Attorney Act 2003 (NSW) authorises a person (your Attorney) to manage your legal and financial affairs;
- An Appointment of Enduring Guardian made under the Guardianship Act 1987 (NSW) authorises a person (your Guardian) to make lifestyle, health and medical decisions on your behalf.
If you are the Director of a company, then you should also consider preparing a Company Power of Attorney. Read our previous blog post, Company Power of Attorney: An important estate planning tool for directors, and contact Cheney Suthers today.
At Cheney Suthers, we can assist you to prepare these documents alongside your Will preparation, or as standalone documents.
Each Australian State and Territory have their own legislation governing the appointment of an attorney and enduring guardian. Importantly, section 25 of the Powers of Attorney Act 2003 (NSW) and section 6O of the Guardianship Act 1987 (NSW) allow for an appointment of an attorney and enduring guardian created under a document in another Australian State and Territory to be recognised in New South Wales, but there are limits.
Limitations on interstate Powers of Attorney
Firstly, any condition or restriction attached to the instrument under the law of the originating state or territory continues to apply in NSW. Secondly, the instrument cannot confer on the attorney a power that could not validly be conferred under a NSW enduring power of attorney. In other words, the attorney receives the narrower of the authority under the original document and what the NSW law permits.
Limitations on interstate Appointments of Enduring Guardian
As with interstate Powers of Attorney, the limitations from the originating jurisdiction continue to apply and the instrument cannot confer a function that could not lawfully be conferred on a NSW enduring guardian.
What if you need to review your documents?
If you have moved interstate, own assets in multiple States and/or Territories or have never prepared a Power of Attorney and Appointment of Enduring Guardian, then you may need to review your current estate planning documents. Contact Cheney Suthers today to arrange an appointment.