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Enduring power of attorney

Guardianship Division

NCAT has the power to 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.

Making an enduring power of attorney

An attorney appointed under an enduring power of attorney can make financial decisions on your behalf, for example selling your house or operating your bank account. An enduring power of attorney can also make decisions about your legal affairs, for example instructing a solicitor.

An enduring power of attorney is made under the Powers of Attorney Act 2003 and can be used to make decisions about property or finances in NSW.

There are legal requirements that must be met to ensure that your enduring power of attorney is valid. You may wish to consult a solicitor about making an enduring power of attorney. 

Visit the Planning Ahead Tools website for further information about what is required to make an enduring power of attorney.

The NSW Trustee and Guardian can also assist you with making an enduring power of attorney where they are appointed attorney or substitute attorney with your spouse or de facto partner.

​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.