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Enduring Power of Attorney

NCAT can review an enduring power of attorney and make orders under the Powers of Attorney Act 2003. It can declare that a person who made an enduring power of attorney ('the principal') did not have the mental capacity to do so and that the enduring power of attorney was invalid.

NCAT can vary or revoke an enduring power of attorney. It can appoint a substitute attorney and it can declare the principal is not competent to manage their affairs.

How do I make an Enduring Power of Attorney?

An Enduring Power of Attorney is an important legal document. An attorney appointed under an Enduring Power of Attorney can look after your legal and financial affairs after you have lost capacity to make decisionsIt is recommended you seek legal professional help to tailor it to meet your specific requirements.

NSW Trustee & Guardian can prepare your Enduring Power of Attorney and charge a set fee for this service. A solicitor will normally charge an hourly rate or a fixed fee.

If you choose to prepare it yourself, a Power of Attorney fact sheet and forms [PDF 289kB] are available from NSW Land and Property Information.

Visit the Planning Ahead Tools website for more information about making an Enduring Power of Attorney.

​Review of an Enduring Power of Attorney

Attorneys are not supervised nor are they required to report to any authority. If you are concerned that the attorney is not acting in the best interests of a person who has lost capacity, you can make an application to NCAT to review the enduring power of attorney.

NCAT can review enduring powers of attorney under the Powers of Attorney Act 2003 if it considers the request for a review is in the best interests of the person who made the enduring power of attorney.

If it is satisfied of the need to do so, NCAT can vary or revoke the enduring power of attorney. The Tribunal has the power to remove an attorney from office or appoint a substitute attorney. It can reinstate an enduring power of attorney that has lapsed because the attorney is no longer able to act. It can also require an attorney to provide accounts and information.

NCAT has the power to declare whether the person did or did not have the mental capacity to make a valid enduring power of attorney, and can declare an enduring power of attorney to be invalid, in whole or in part. It also has the power to declare that the person lacked capacity at or during a specified time or lacks capacity for the time being.

Alternatively, NCAT may decide not to make order about the enduring power of attorney. NCAT may instead treat the application for review as an application for financial management. The Tribunal could then make a financial management order, which suspends the operation of an enduring power of attorney for the duration of the Tribunal’s order. 

For further details, refer to the fact sheet Review of an enduring power of attorney [PDF, 68kB].

To apply, complete the Application to review an Enduring Power of Attorney [PDF, 307kB] and submit to NCAT's Guardianship Division.

Review of a revocation of an enduring power of attorney

NCAT has the power to review a revocation of an enduring power of attorney. The Tribunal can declare that the person ('the principal') did or did not have the mental capacity to revoke the enduring power of attorney. The Tribunal can declare an enduring power of attorney is valid if it is satisfied that either:

  • The principal did not have the mental capacity to revoke the enduring power of attorney or 
  • The revocation was invalid for other reasons (for example, undue influence or dishonesty).

NCAT may decide not to make orders about the revocation of an enduring power of attorney and to treat the application as if it were for a financial management order.

To apply, complete the Application to review of a revocation of an Enduring Power of Attorney [PDF, 287kB]​ and submit to NCAT's Guardianship Division.

Recognition of an interstate enduring power of attorney

NSW automatically recognises enduring powers of attorney made under the law of other states and territories of Australia, so that an interstate enduring power of attorney can be used in NSW.

Other states and territories of Australia have their own legislation governing enduring powers of attorney. Some, but not all, automatically recognise a NSW enduring power of attorney as legally valid in those states.

If you have savings, assets or property in another state or territory, you should find out whether the law in that other state or territory will allow a NSW enduring power of attorney to be used there. If the NSW enduring power of attorney cannot be used in the other state or territory, you may wish to consider making an enduring power of attorney under the laws of that state or territory.

For more information on enduring power of attorney laws in other states or territories, contact the relevant interstate guardianship organisation through the Australian Guardianship and Administration Council website.