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16 February 2017

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Wills, Powers, Estates & Family Provision Claims
South Australia

Asked

My clients want to do their wills, powers of attorney and advance care directives.

They own a property in South Australia and also a property in Victoria.

They have recently moved to Victoria.

If I prepare the documents in SA will they be applicable in VIC?

Thanks in advance.

Answered

Thank you for the question.

Wills made in any state or territory are valid in every other state or territory.

A general power of attorney is in common law effective in any state or territory even if made in another state or territory. See our Powers of Attorney commentary.

In relation to an advance care directive, the Victorian Medical Treatment Act 1988 does not recognise instruments made in other states or territories, and the client will need to make arrangements to enter into a supportive attorney in Victoria.

In relation to an enduring power of attorney, see s 138 of the Victorian Power of Attorney Act 2014:

Recognition of enduring powers of attorney made in other States and Territories

(1) If an enduring power of attorney is made in another State or a Territory of the Commonwealth and complies with the requirements of that other State or Territory, then, to the extent the powers it gives could validly have been given by an enduring power of attorney made under this Act, the enduring power of attorney is taken to be an enduring power of attorney made under, and in compliance with, this Act.

(2) This section applies to an enduring power of attorney made in another State or a Territory of the Commonwealth, whether made before or after the commencement of this Act.

For more information, see the Recognition of interstate powers – Comparative table published in our Wills and Powers of Attorney guides.

Regards

Mentor