Enduring Power of Attorney in the Northern Territory: Replaced by the Advance Personal Plan

An enduring power of attorney can no longer be created in the Northern Territory. New instruments made since 17 March 2014 are Advance Personal Plans under the Advance Personal Planning Act 2013 (NT); an enduring power of attorney made before that date stays valid and is still governed by the earlier Powers of Attorney Act 1980.

This page covers Northern Territory state machinery: making an Advance Personal Plan, its witnessing rule, registration, the decision maker's duties, and what happens to an enduring power of attorney made before the 2014 change. For what an enduring power of attorney is and how the states compare, see the national overview of enduring power of attorney in Australia.

Why this page is not really about an "enduring power of attorney" anymore

Two Acts matter in the Northern Territory. The Powers of Attorney Act 1980 (NT), Part III, is the old enduring-power regime. A note in the Territory's own consolidation of that Act states that "although a new enduring power of attorney cannot be created in the Territory" after the commencement of section 8 of the Advance Personal Planning Act 2013, Part III "continues to have effect in relation to enduring powers of attorney created in the Territory before that date... regardless of when they were created." The amending instrument was the Advance Personal Planning (Consequential Amendments) Act 2013, which commenced on 17 March 2014. Part III itself was not repealed, only closed to new instruments.

Since that date, anyone wanting equivalent authority makes an Advance Personal Plan under the Advance Personal Planning Act 2013 (NT) instead. It combines financial decision-making authority with advance-care-directive-style personal and health decisions in the one instrument, naming a "decision maker."

Making an Advance Personal Plan: signing and witnessing

Section 10 requires the plan to be signed by the adult, or, if the adult is unable to sign, by a representative acting on the adult's direction and in the adult's presence. It must be signed in the presence of an authorised witness.

The Territory requires only one witness, not two. An authorised witness is a person authorised under the Oaths, Affidavits and Declarations Act 2010 (NT) to administer an oath, or a person prescribed by regulation. The witness must certify that they reasonably believe the adult is who they say they are and is at least 18, that the adult appeared to understand the plan's nature and effect and was acting voluntarily and without coercion, and that the plan was signed in the witness's presence.

If a representative signs on the adult's behalf, section 10(4) requires that representative to be 18 or older, and bars them from being, or being appointed as, a decision maker under the plan.

When the plan starts operating

An Advance Personal Plan operates according to its own terms once validly made. Unlike Western Australia, where a financial decision maker's authority needs a tribunal declaration before it can be exercised, the Northern Territory does not require a tribunal step simply to activate the plan.

Registration

Registering an Advance Personal Plan is not required for it to be valid. Section 55B(3) states this directly: registration in the Advance Personal Planning (Part 4A) Register "is optional and non registration does not affect the validity or effect of the advance personal plan."

Registration matters for one specific situation. Under section 55A, a land dealing purportedly exercised by a decision maker has no effect unless the plan conferring that authority was registered at the time. Section 55A(2) provides a cure: a dealing made while the plan was in force but unregistered can take effect once the plan is later registered. The Registrar-General maintains the register.

This is a reversal of the pre-2014 position. Under the old Powers of Attorney Act 1980, section 13(c) made registration a condition for the power to survive the donor's incapacity at all, closer to how Tasmania's law works today. The 2014 reform moved the Northern Territory away from that model; Tasmania remains the one jurisdiction where registration is mandatory for an instrument's general legal effect, not just for land dealings.

Decision maker duties, conflicts and gifts

Section 32 lets a decision maker make a gift from the adult's property only if the gift is of a kind the adult made when they had capacity, or might reasonably be expected to make, and its value is reasonable in the circumstances. The plan itself can restrict the decision maker's gift authority, or authorise gifts beyond what section 32 would otherwise allow.

Section 32(4) places a further limit on this power. This page has not been able to confirm the exact wording of that limit against the Act text and does not state it here; check the current Act directly, or with the NT Public Trustee or Office of the Public Guardian, before relying on a gift made under a general authorisation.

Ending or changing a plan

Section 12 covers amendment or revocation by the adult. This page has not been able to confirm the precise mechanics, including whether the Act automatically narrows or ends a decision maker's authority on the adult's divorce or separation from that decision maker. Do not assume either a marriage or divorce automatically changes an Advance Personal Plan; confirm the current position directly before relying on it.

Enduring powers of attorney made before 17 March 2014

An enduring power of attorney signed before 17 March 2014 was not cancelled or converted into an Advance Personal Plan. It remains valid and continues to be governed by Part III of the Powers of Attorney Act 1980 (NT), regardless of how long ago it was made. Anyone holding an EPA made before that date should look to the 1980 Act, not the 2013 Act, for the rules that govern it.

Instruments made in other states

Section 88 lets a "recognised interstate document" operate in the Territory as if it were an Advance Personal Plan, but this is conditional, not automatic. Section 88(6) defines a recognised interstate document as one made under a "corresponding law" that is prescribed by regulation, and "corresponding law" itself means a law prescribed by regulation for this purpose. This page has not checked the regulations to confirm which other states' or territories' instruments are currently prescribed, so an instrument from another jurisdiction should not be assumed to be automatically recognised in the Northern Territory; confirm directly before relying on one.

Disputes

Part 5 of the Advance Personal Planning Act 2013 gives the NT Civil and Administrative Tribunal (NTCAT) jurisdiction to review a decision maker's conduct and resolve disputes over a plan. The NT Public Trustee and the Office of the Public Guardian can also point you to the current process.

Official forms and fees

Advance Personal Plan forms are available through the NT Public Trustee and the Office of the Public Guardian. This page has not independently fetched current form names or a fee schedule; confirm both directly with those agencies before relying on a figure. Registration in the Part 4A land-dealings register is handled by the Registrar-General; no registration fee is confirmed here.

For the probate process that follows a death in the Northern Territory, see applying for probate in the Northern Territory.