One aspect of the Australian estate planning system that lawyers and advisers have resigned themselves to accept, but which clients often find ludicrous, is the fact that every Australian state has a different set of power of attorney forms required to be completed as part of a comprehensive estate planning exercise. In fact, several states actually call the documents by entirely different names, making it very difficult for non-lawyers to get their head around the entire system.
This week’s blog post tackles the topic of enduring powers of attorney and the options available for clients where they own assets in several different states. This is my very first VLOG (video blog), so please be kind!
Hi. Thanks for tuning into my blog this week. I’m Tara Lucke and I’m a lawyer with View Legal. This is actually my very first video blog post. So, I thought I’d tackle a topic that is pretty simple, but actually comes up all the time, and that is powers of attorney for financial matters in multiple states. So, the big question is whether you can prepare a power of attorney in one state and have it lodged and applied for assets owned in another state.
You’re probably aware that every state does have a different sets of forms and rules relating to their powers of attorney, and unfortunately, there’s not much sign from the different governments that they are looking at ultimately consolidating those different forms. So, us practitioners do have to prepare different powers of attorney according to the client state.
This actually comes up for me quite a lot because of where I live. So, I’m at the Gold Coast, quite close to the New South Wales and Queensland border, and particularly clients who live near the twin towns of Tweed Heads and Coolangatta, they often have assets in several states, depending on which side of the border they happen to be. So, it is an issue that comes up quite a lot, and also beyond the Queensland-New South Wales border, I do see it in my practice nationally as well.
So, critical question – can you lodge, say, a Queensland power of attorney in the New South Wales LPI? The technical answer is that, yes, you should be able to rely on an interstate power of attorney for financial transactions in another state. That’s a technical position because there is legislation recognizing the authority of the Interstate powers of attorney. The practical position, however, is something a little bit different. So, we often do recommend to clients that they consider making a parallel financial power of attorney for assets in each state that they own real property and that really comes from the bureaucratic issues.
So, if you sort of think about the fact that there is a clerk in the titles office or LPI or Landgate who may never have come across this particular power of attorney from another state before, you’re probably going to run into a few practical difficulties. It may not get prioritized, get pushed back to the too hard basket at the bottom of the pile. They might have questions about the valid execution, that kind of things. So, where we’re talking significant holdings of clients who do want to prioritize efficiency, it’s a good idea to execute multiple financial powers of attorney for each state in which they own property.
One thing that is important to remember is if you’re going to take that approach, each financial power of attorney should also include a clause acknowledging that there has been a financial power of attorney prepared in the other jurisdictions, and making sure that executing each of those documents does not revoke the other financial power of attorneys because as you probably know, each new power of attorney that you make revokes the prior and we don’t want that to happen. So, just include that extra clause confirming that they are all going to operate parallel and that should save everyone a whole lot of white noise and bureaucracy if the financial power of attorney needs to be relied on across the country.
Hopefully, that’s cleared up any questions that you might have had on this topic. I’m always happy to chat and you can see my details on the contacts page. Reach out if you do have a particular circumstance or more questions that you want to ask. Thanks for tuning in.