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.
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 decisions. It 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.
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.
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:
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.
Interstate enduring powers of attorney or their equivalent are automatically recognised in NSW. You do not need to apply to NCAT for an interstate recognition.
If you have savings, assets or property in another state or territory, find out whether your NSW Enduring Power of Attorney will be recognised in that state or territory. Visit the Australian Guardianship and Administration Council website for contact details of the relevant interstate guardianship organisation.
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