Power of Attorney (NT)

Granting power of attorney to another person can be a difficult decision. A person (the “donor”) signs a document to give another person (the “attorney”) the legal right to act on their behalf. The donor can create either a general or an enduring power of attorney. In the Northern Territory, these are governed by the Powers of Attorney Act 1980 and the Powers of Attorney Regulations 1982.

Granting a power of attorney is a very serious step. Careful consideration should be given to the breadth of the power granted, ranging from very broad authority to narrow and specific power. The exact scope of the attorney’s decision-making power is listed in the power of attorney document.

The scope is only limited by the donor’s instructions. They can give the attorney power for a specific purpose, such as to sign documents, access bank accounts or pay bills. A donor may want someone else to act in their place during their absence from home. For instance, if a donor is travelling to work overseas, they might grant a relative the legal right to access their finances to pay rates and land tax. Similarly, a donor may want an attorney to act on their behalf while they are in hospital for an extended stay.

This document should be drawn up by a solicitor to ensure that the wording expresses the donor’s exact wishes. In this way, the donor can apply restrictions on a power of attorney. The document can stipulate that the attorney only has authority within certain jurisdictions, only for a limited period of time, or in certain circumstances. For instance, the power may only be exercised in the Northern Territory, only for a limited time period, or only while the donor is overseas.

General And Enduring

A donor can give full legal rights to someone else with a general power of attorney. This only remains valid while the donor has legal capacity to manage their own affairs.

In some jurisdictions in Australia, a donor can also make an enduring power of attorney. This type of legal authority remains valid even if they lose capacity. In the Northern Territory, a donor can no longer make an enduring power of attorney. Instead, a donor can make an Advanced Personal Plan to appoint someone else as their decision maker in case of future incapacity. An enduring power of attorney made in the Northern Territory before 17 March 2014 remains in effect unless revoked.

An Advance Personal Plan (APP) sets out a donor’s future financial, health and life choices should they be unable to make decisions for themselves. It does not replace a will, but it is known as a “living will”. An APP takes effect when the donor loses decision-making capacity through accident, illness or age. If an APP contains directions about the donor’s heath, physicians must follow these instructions. Alternatively, an APP can just appoint an attorney to make health care and lifestyle decisions that they feel are best for the donor in the circumstances.

How Long Does It Last?

A court can revoke an enduring power of attorney at any time. A general power of attorney ceases when a donor is legally incapacitated. Beyond that, a general and enduring power of attorney lasts until the donor revokes the power, or until:

  • the attorney decides to stop acting as attorney;
  • the attorney becomes legally incapacitated; or
  • the attorney or donor becomes bankrupt or dies.

A donor can make changes by revoking the original document with a form from the Land Titles Office.

Who Can Act As An Attorney?

Once a power of attorney is signed, the other person is called the attorney. A donor can appoint anyone to be attorney as long as they have the necessary legal capacity to perform their role.

Making And Registering The Document

To be legally valid, a power of attorney must be signed by the donor and an authorised witness, such as a legal practitioner, Commissioners for Oaths, real estate agent or police officer. If the donor cannot physically sign because of illiteracy or disability, another adult can sign on their behalf in their presence with an authorised witness. There is no need to register it, unless the document grants rights to sign for land transactions registered with the Land Titles Office.

A donor can obtain a standard form from the Registrar General’s Office.

However, it is best to ask the team at Go To Court Lawyers to help you draft a document that is valid and fully expresses your wishes. Please call 1300 636 846 or contact the team today for assistance with any legal matter.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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