Interesting to read in the September edition of ENVOY, the details about the campaign in New Zealand to raise public awareness of preparing Powers of Attorney. Recently a few cases have come across my desk where either an Enduring Power of Attorney (EPA) or a Property Manager Order (Order) has not been recognised in Australia.
There is no standard Act in any of the Australian jurisdictions that recognises these documents from outside of Australia. It therefore becomes a case by case basis depending on the institution you are dealing with. In the case of share registries they seem to have no problem accepting an EPA or Order from New Zealand for the execution of share transfers or other documents relating to the shareholding. Likewise, I have yet to come across a Share Broker that won’t accept an EPA or Order.
However this is a different story with Banks and some other Financial Institutions and is causing issues with the administration of the financial affairs for the attorney or property manager. To further complicate this there seems to be different avenues for overcoming this obstacle depending on the State in which the funds are held.
The Victorian Civil and Administrative Tribunal (VCAT) is responsible for these matters in that State and has indicated in the case of UK Deputyship Order that the Court appointed Deputy can apply on-line and have a hearing over the phone once various medical records etc are forwarded to VCAT and that they will issue a similar order allowing the Financial Deputy to manage the accounts in Victoria. Whilst not particularly costly it is a process that is not that easy to follow and providing the necessary evidence from the other side of the world is not that simple.
The Queensland Civil and Administrative Tribunal (QCAT) will not recognise the foreign EPA or Order and state that it is not possible for someone to apply to QCAT for appointment as a financial Guardian for someone when both parties are not in the jurisdiction. I advised the bank in this situation that it is impossible to get the Court Order they require as the State does not allow for it, but they have held fast. The work around at present is to have an account opened for the Donor by the Attorney at the New Zealand branch of the same bank so that they can transfer the funds to that account internally!
Whilst having no experience in reverse, I imagine that the recognition of EPA’s or Orders in other international jurisdictions will become a bigger issue over the years. It would seem prudent to enquire of clients when preparing an EPA as to whether they have any assets in other jurisdictions. If there are any in Australia, an EPA in our format is capable of being executed in New Zealand and would be accepted as a valid EPA when produced to the relevant Australian Institution..
In the event of an Order having been made and the institution involved insisting on an Order from Australia, it would seem if there is no way around other than perhaps to obtain an order from one Australian jurisdiction where it is possible to do so and then use it in the jurisdiction required, as all Australian Orders are recognised no matter what Sate they are issued in..
Update on Informal Wills (ENVOY September 2014)
In Howe v Fischer [2014] the Court of Appeal upheld the appeal in the case where a Solicitor was found liable for damages for negligently failing to procure the signing of an informal will. The Court of Appeal held the duty of care owed by the appellant to the respondent (the beneficiary who missed out) was delimited by the terms of the retained he had with the deceased and that the retainer did not extend beyond the preparation of the formal will.