An Enduring Power of Attorney (EPOA) enables a person (the grantor) to appoint another (the attorney) to make financial and personal decisions that continue to be effective even after the grantor loses capacity.
While the concept is uniform nationally, across Australia, each jurisdiction regulates EPOAs differently in scope, form, recognition, and management of attorney conflicts.
While most jurisdictions permit a principal to authorise conflict transactions expressly, some impose tight statutory controls or require tribunal or court approval.
The tables below provide a summary of similarities and differences in EPOAs by the various State and Territory statutory rules. Please note that common law rules and restrictions also apply but have not been included in these tables.
If you are the grantor of an EPOA, it is prudent to seek jurisdiction specific advice and assistance when making an EPOA. Similarly, if you are an attorney, seek jurisdiction specific advice before acting under an EPOA to ensure that you understand the scope of operation of your powers and comply with your jurisdiction-specific duties.
| Power type and nature | NSW | VIC | QLD | SA | WA | TAS | NT | ACT |
| General power of attorney | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ | ||
| Enduring power to do anything the grantor can do | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ | ||
| Enduring power for financial, personal, health etc matters | ✓ | ✓ | ||||||
| Recognition of interstate enduring powers | ✓ | ✓ | ✓[1] | ✓ | ✓ | |||
| Enduring power may be made by grantor outside jurisdiction | ✓ | ✓ | ✓ |
| Express Statutory Restrictions on Appointment[2] | NSW | VIC | QLD | SA | WA | TAS[3] | NT | ACT |
| Grantor must be 18+ | ✓ | ✓ | ✓ | ✓ | ||||
| Attorney must be 18+ | ✓ | ✓ | ✓ | ✓[4] | ✓ | |||
| Not insolvent under administration | ✓ | |||||||
| Not bankrupt (financial attorney) | ✓ | |||||||
| No dishonesty conviction (financial) unless disclosed | ✓ | |||||||
| Not a care worker of the grantor | ||||||||
| Not a care worker of the grantor in last 3 years | ✓ | |||||||
| Not a health worker of the grantor | ✓ | |||||||
| Not a health provider of the grantor | ✓ | ✓ | ||||||
| Not an accommodation provider of the grantor | ✓ | |||||||
| Not a residential facility service provider where the grantor resides | ✓ | |||||||
| Financial attorney may be Public Trustee or trustee company | ✓ | |||||||
| Not a corporation (except trustee company / Public Trustee) |
| Express Statutory Restrictions on Attorney Powers | NSW | VIC | QLD | SA | WA | TAS | NT | ACT |
| May not exercise powers of trustee | ✓ | ✓ | ||||||
| May not make gifts unless expressly authorised or subject to various statutory limitations | ✓ | ✓ | ✓ | |||||
| May not appoint a delegate unless expressly authorised | ✓ | |||||||
| May not appoint a delegate (some while grantor impaired / some unless the instrument provides to the contrary) | ✓ | ✓ | ||||||
| May not make a will or revoke one | ✓ | ✓ | ✓ | |||||
| May not revoke another enduring power or advance care plan | ✓ | ✓ | ✓ | |||||
| May not vote in any election | ✓ | ✓ | ✓ | |||||
| May not consent to marriage or divorce, separation, entering or terminating a personal relationship | ✓ | ✓ | ✓ | ✓ | ||||
| May not consent to a sexual relationship | ✓ | |||||||
| May not make a decision about the care or wellbeing of a child of the grantor | ✓ | |||||||
| May not make a decision about the adoption of a child or the grantor under age 18 | ✓ | ✓ | ✓ | ✓ | ||||
| May not enter into a surrogacy arrangement on behalf of the grantor | ✓ | ✓ | ✓ | |||||
| May not consent to making or discharging a substitute parentage order on the grantor’s behalf | ✓ | |||||||
| May not manage the deceased estate of the grantor | ✓ | |||||||
| May not consent to an unlawful act | ✓ | |||||||
| May not deal with the place or person where or with whom the grantor lives | ✓ | |||||||
| May not deal with whether the grantor works and matters relating to such work | ✓ | |||||||
| May not deal with whether the grantor undertakes education or training and its type | ✓ | |||||||
| May not deal with whether the grantor applies for a licence or permit (other than a business permit) | ✓ | |||||||
| May not deal with day to day matters relating to diet, recreation, hobbies, companions, pet ownership, sexual expression, dress, hairstyle | ✓ | |||||||
| May not deal with persons with whom the grantor associates or the clubs, associations or political parties that the grantor may join | ✓ | |||||||
| May consent to making or discharging a parentage order | ✓ | |||||||
| May not deal with health care, or the withdrawal of health care, for the grantor | ✓ | |||||||
| May not receive a personal benefit (some unless expressly permitted by the instrument or an excepted transaction) | ✓ | ✓ | ||||||
| May not enter into transactions where the attorney, a relative, business associate or close friend has a conflict of interest or where the actions conflict with another duty unless permitted by the instrument or an excepted transaction | ✓ | ✓ | ||||||
| May not exercise the grantor’s rights as an accused person in relation to a criminal investigation or criminal proceedings | ✓ | |||||||
| May not exercise any power in relation to restricted health matters, sterilisation, termination of a pregnancy, removal from the grantor of non-regenerative tissue and health care action prescribed by regulation | ✓ | ✓ | ||||||
| May not consent to sterilisation | ✓ | |||||||
| May not consent to termination of a pregnancy, electroconvulsive therapy or psychiatric surgery, and health care prescribed by regulation | ✓ |
| Statutory Termination and Revocation Events | NSW | VIC | QLD | SA | WA | TAS | NT | ACT |
| Terminates by its terms | ✓ | ✓ | ✓ | |||||
| Death of grantor | ✓ | ✓ | ✓ | ✓ | ||||
| Revocation by grantor (capacity required) | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ | ||
| Death of attorney | ✓ | ✓ | ✓ | ✓ | ✓ | |||
| Resignation of attorney (sometimes limited) | ✓ | ✓ | ✓ | ✓ | ||||
| Bankruptcy of grantor | ✓ | |||||||
| Bankruptcy of attorney (or in some taking advantage of such laws where financial powers or report to Tribunal) | ✓ | ✓ | ✓ | ✓ | ✓ | |||
| Attorney ceases to have physical or mental capacity to continue | ✓ | ✓ | ✓ | ✓ | ||||
| Supreme Court or Tribunal order | ✓ | ✓ | ✓ | ✓ | ||||
| Appointment of an alternative attorney | ✓ | |||||||
| Making a later EPOA some unless expressed to the contrary | ✓ | ✓ | ||||||
| Grantor’s marriage or civil partnership or union, unless a contrary intention is expressed to the extent the power is given to a person who is not the spouse or civil partner | ✓ | ✓ | ||||||
| Divorce or ending of civil partnership or union, sometimes to the extent it gives power to the divorced spouse or prior civil partner | ✓ | ✓ | ✓ | |||||
| Terminates to some extent where the attorney becomes a paid carer, health provider or service provider for a residential services | ✓ |
[1] Recognition of an interstate EPOA in WA is subject to the State Administrative Tribunal recognising it as an enduring power for the purposes of the WA legislation, but it must sufficiently correspond with WA requirements.
[2] The foregoing does not include any common law restrictions to the extent they may apply.
[3] In TAS, an EPOA does not extend to person matters, meaning the private life, lifestyle or health of the grantor. The foregoing is based on that list. Separation and entering or terminating a personal relationship is an extra exclusion in Tasmania.
[4] In the NT, an advanced personal plan may appoint an appointee under the age of 18 years if it takes effect on the person attaining their majority.
* This content is not legal advice. It has been prepared by STEP Australia as a handout for the 2025 FAAA Congress in Perth. It is based on the presentation Powers of Attorney – A useful tool or keys to the lolly shop by Dr Bernard Walrut at STEP Australia National Incapacity Conference 2023. If you or a client needs to prepare an EPOA or act as an attorney under an EPOA, seek professional legal advice from a STEP member in your jurisdiction.