Enduring Power of Attorney in Tasmania: Why Registration Is Mandatory

In Tasmania, an enduring power of attorney made under the Powers of Attorney Act 2000 has no legal effect until it is registered with the Recorder of Titles, the only Australian jurisdiction where registration remains mandatory for the document to work at all.

What Tasmania calls it and what it covers

Tasmania's enduring power of attorney is created under the Powers of Attorney Act 2000 and covers financial matters. See the national enduring power of attorney guide for what an enduring power of attorney is generally and how it differs across Australia, and the enduring guardianship and health decisions guide for personal and health decision making.

Making one: execution and witnessing

Section 9(1)(b)(i) requires the enduring power to be signed by the donor, with that signature attested by two witnesses, neither of whom is a party to the document nor a close relative of a party to it. That puts Tasmania with the two-witness states, not the one-witness pattern found in New South Wales and South Australia.

Registration: the rule that defines a Tasmanian EPA

This is the fact that sets Tasmania apart from every other current Australian enduring power of attorney regime. Section 16 provides that acts done under a power of attorney have no legal effect unless the power has been registered beforehand, or, where an enduring power is subject to a tribunal order, unless a copy of that order has also been registered. This is registration for validity, not merely for a land dealing. An unregistered Tasmanian enduring power of attorney does not work for any purpose until it is registered.

Registration is with the Recorder of Titles, through the Tasmanian Land Titles Office. The donor or donee submits the original signed and witnessed instrument, a completed Lodgement Form, and a signed and dated Form 5 Registration Application, along with the applicable fee, either by post to the Land Titles Office, PO Box 541, Hobart TAS 7001, or by hand delivery to 134 Macquarie Street, Hobart. The exact current registration fee was not confirmed in the research behind this page; check the Land Titles Office's current fee schedule before lodging.

It is worth noting Tasmania is not the only Australian jurisdiction to have ever had this rule, just the only one where it remains true today. The Northern Territory's old enduring power of attorney regime, closed to new instruments since 2014, also required registration before the power could survive the donor's incapacity.

Attorney duties, conflicts and gifts

Section 31(3) restricts what a Tasmanian donee can give away from the donor's assets. A gift must be to a relation or close friend of the donor and be seasonal or made on an occasion on which gifts are customarily given, or it must match a pattern of giving the donor had already established, and its value must be reasonable having regard to all the circumstances. Section 32 sets out further duties owed by an attorney acting under an enduring power.

Ending or changing an EPA

Under section 32AE, an enduring power of attorney is revoked if the donor gives the attorney notice of revocation, and it is also revoked if the donor dies or becomes bankrupt or insolvent. The Act separately addresses what happens if the donor's marriage or a registered relationship ends, but the precise wording of that provision was not independently confirmed for this page, so a donor relying on a relationship breakdown to end an EPA should confirm the current text directly rather than assume the effect. Because Tasmania's whole framework runs on registration, a revocation notice may also need to be registered with the Recorder under section 17(2) before it is complete; this point likewise was not independently confirmed and is worth checking before relying on it.

Instruments made in other states

Section 42 recognises an interstate power of attorney in Tasmania if it is registered in that other state or territory under a law that corresponds to Tasmania's Act. That is a narrower test than a state that has no registration requirement of its own. An enduring power of attorney that is perfectly valid in a jurisdiction that never requires registration may not automatically meet section 42's test, because there is nothing registered to point to. Anyone moving to Tasmania with an EPA made elsewhere should check directly with the Land Titles Office or a Tasmanian practitioner whether their instrument needs to be registered in its home jurisdiction, or separately in Tasmania, before relying on it here.

Official forms and related steps

Tasmania's Land Titles Office publishes the forms used for a power of attorney: a General Power of Attorney form, an Enduring Power of Attorney form, a Revocation of Power of Attorney form, and a Declaration of Death, Bankruptcy or Insolvency form. A Lodgement Form and Form 5, the Registration Application, accompany the instrument when it is lodged for registration. If you are instead dealing with someone's estate after death rather than planning ahead, see the Tasmania probate guide. For other estate planning steps, see the making a will in Australia guide.