Joint bodies push for greater clarity on interstate EPOAs
Greater consistency, certainty and simplicity are needed concerning interstate recognition of EPOAs, according to joint bodies.
A raft of professional bodies have welcomed proposed measures by the government to to improve the harmonisation of the operation of the enduring powers of attorney (EPOA) legislative framework across the state and territory jurisdictions.
The major accounting bodies and SMSF Association said there is a need for harmonised measures to ensure the provision of suitable protections and assistance to principals, while concurrently facilitating accessibility.
In October the government issued a consultation paper that sought feedback on financial EPOA laws, including whether there needed to be design of current interstate recognition arrangements for financial EPOA be improved or further simplified.
The SMSF Association and joint bodies said the status of interstate EPOAs remains unclear and that greater clarity is required in this area.
“Issues can arise where an individual resides in one jurisdiction but holds property or assets in another,” the submission stated.
“Further, the attorney may not reside in the same location as the principal. This can be further complicated where SMSFs are involved, with the underlying trust instrument created in one state, the trustees located in another, with assets located in a third state.”
Greater consistency and certainty across EPOA laws would help to remedy these issues, the joint bodies stated.
The submission stated that some entities will not recognise an EPOA executed in another jurisdiction which may arise because the law in a jurisdiction is not well known.
“Problems particularly arise where property transactions are involved, and the unique documentation and registration requirements that can apply in different jurisdictions when dealing with the respective land titles office,” the submission stated.
The joint bodies stated that practical guidance about the circumstances in which an EPOA in one state or territory would be recognised in another and the circumstances in which interstate recognition may not occur would be helpful.
The submission said that the government could also consider allowing EPOAs to be executed electronically in urgent situations.
While having protections in place is important, the submission noted that there may be cases where adhering to the ordinary requirements is an impediment.
“We believe that there may be cases where requirements can be mitigated due to urgency. For example, execution of documents before urgent major surgery. We believe that for situations such as these, execution via electronic means should be available,” the submission said.
“Recent changes to the execution of statutory declarations (Federal) on the enactment of the Statutory Declarations Amendment Bill 2023, provides a useful example and an appropriate framework. For consistency, similar measures should be adopted for EPOAs.”
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